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Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu - Join Us!

It's back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here's a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We'll be speaking during the session on Takings, along with our colleagues Greg Kugle, Brad Saito, and Ellen Ashford.

Register here (limited to 70 registrants, no walk-ins, so be sure to get your spot now). Travel to and from Hawaii is back open and no more Co-19 hassles at the airport, so take advantage of the opportunity for a little R&R and CLE. 

As Jack Lord would say, "be there, aloha!"

New Article: "Takings, PASH, and the Changing Coastal Environment," 43 U. Haw. L. Rev. 525 (2021)

Back in February, we were honored to be part of the University of Hawaii Law Review's symposium "25 Years of PASH," a retrospective of one of the Hawaii Supreme Court's most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH).

At the conference, we spoke on the panel about "PASH and the Changing Coastal Environment" (see video here at the 2:02:25 mark if you want to watch our panel's summations). The Law Review has now published the symposium, and here's our contribution, Takings PASH and the Changing Coastal Environment, 43 U. Haw. L. Rev. 525 (2021).

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

Here's our piece's Introduction:

The topic of this portion of the Symposium is “Takings and the Changing Coastal Environment” and in this comment I focus on the “takings” part of that title, as well as offer some thoughts on our guiding subject, the Hawai‘i Supreme Court’s decision from a quarter-century ago in PASH, which most famously noted “that the western concept of exclusivity is not universally applicable in Hawaii.” How might this statement be considered today through the lens of property law and property rights, especially if we account for the changes in the U.S. Supreme Court’s approach to takings in the time since PASH was decided? And what implications does PASH have, if any, for property rights in the coastal zone?

This comment is in three parts. Section I summarizes the PASH opinion, and concludes that the jurisdictional questions presented in the case should have resolved the case, and the court should have avoided the takings questions, and the court reached out to resolve an issue it need not have. Next, Sections II, II, and IV offer up my three main criticisms of PASH, the first on the court’s seemingly incomplete view of how Hawai‘i property law treated the right to exclude, the second on whether defining “property” for purposes of federal takings analysis is only a matter of state law, and the third on separation of powers. Finally, Section V concludes with some thoughts about how courts should consider property rights in a changing coastal environment in light of these criticisms of PASH.

Check out the symposium issue, which has similar articles from a variety of perspectives.

Takings, PASH, and the Changing Coastal Environment, 43 U Haw L Rev 525 (2021)

New Cert Petition: The Self-Executing Fifth Amendment Abrogates 11th Amendment Immunity

Here's the latest in a case we've been following (one in which we guessed from the beginning was headed where it is today).

The Zitos claim that their property was taken without compensation. They sued for compensation in federal court. Knick tells us that this is okay, right? Well, the problem for the Zitos is that they claim the State of North Carolina did the taking. And you know what that means: 11th Amendment "immunity." You can't sue a State for money in federal court without its consent. And North Carolina didn't consent.

The District Court dismissed. It concluded that it might have allowed the takings claim for compensation to proceed in federal court except that the Fourth Circuit already concluded that a federal court is barred from considering a takings claim against a state if state law recognizes a takings claim. See Hutto v. South Carolina Retirement System, 773 F.3d 536, 552 (4th Cir. 20914) ("'the Eleventh Amendment bars Fifth Amendment taking claims against States in federal court where the State's courts remain open to adjudicate such claims.").

Wait...you can't come to federal court with a takings claim if there are available state procedures for obtaining just compensation? Sounds familiar, no? Not to the Fourth Circuit, which affirmed. Read this detailed analysis of the Fourth Circuit's opinion here: "4th Circuit: State Sovereign Immunity Bars a Takings Claim in Federal Court when Remedies are Still Available in State Court." 

The court held that Knick's throwing back open the federal court door to takings claims did not address or otherwise undermine the usual 11th Amendment rule. Nor does the "self-executing nature" of the 5th Amendment's Just Compensation requirement alter that. See Zito, slip op. at 11 ("So Knick did nothing new with respect to the self-executing nature of the Takings Clause in federal court.") (footnote omitted). Yes, Knick made Fifth Amendment private property rights equal with other rights (under Williamson County, these rights were definitely treated as second-class right), but it didn't elevate private property rights and merely subjected them to the same 11th Amendment limitations on other constitutional rights. There's an exception to the usual 11th Amendment immunity states enjoy in federal court if there isn't a "reasonable, certain, and adequate" means to obtain compensation in state court. But such remedies exist, the Fourth Circuit concluded.

So now we have the cert petition, which asserts this Question Presented:

Whether the Fourteenth Amendment’s incorporation of the “self-executing” Just Compensation Clause abrogates state sovereign immunity from federal takings claims?

Disclosure: the Zitos are represented by our law firm, Pacific Legal Foundation. So we're not going to say much more about this, except to note the Summary of Argument:

The Eleventh Amendment and the Fifth Amendment’s Just Compensation Clause express two of the most venerable constitutional principles in existence: sovereign immunity for states and just compensation for citizens whose property is taken for public use. These principles function independently and adequately in most cases. However, when a state takes property without compensation, sovereign immunity and the Just Compensation Clause—applicable to states through the Fourteenth Amendment—come into conflict. While the former bars a damages award, the latter positively requires it.

The Fourth Circuit’s holding that sovereign immunity is superior to the right of compensation for a taking conflicts with this Court’s jurisprudence, diminishes the Just Compensation Clause, and conflicts with the decisions of other courts, all of which justifies review.

Pet. at 12-13.

Check it out, and stay tuned.

CA11: No Summary Judgment For You On Takings Claim When Town Provided Some Evidence Of Public Customary Use Of Beach

On one hand, the U.S. Court of Appeals' opinion in Buending v. Town of Redington Beach, No. 20-11354 (Aug. 20, 2021) is not a big deal, at least in terms of the issue in the case: did the Town take the plaintiffs' private beach property when it adopted an ordinance allowing the public to use it? Maybe it did, maybe it didn't. The opinion simply vacates the district court's grant of summary judgment to the property owners because there are disputed issues of fact on the Town's affirmative defense of customary use. The district court concluded the Town could not raise the customary use defense.

The Eleventh Circuit, however, held that the Town was not precluded from raising the defense that the property the plaintiffs claimed was exclusively private was also subject to the public's use under longstanding custom, and that the Town's opposition to the plaintiff's motion for summary judgment "provided a range of evidence supporting its customary use defense." Slip op. at 16. The Town submitted evidence showing actual use of the disputed beach area by the public: the Town holds a hotdog cookout on Independence Day each year, it spends public money to rake the beach (apparently including the private parts). That doesn't seem all that controversial. No facts in contention means summary judgment is ok. Conversely, any beef about the facts relevant to a material issue -- here, the Town's affirmative defense of custom -- means that the trier of fact gets to resolve the beef by looking at credibility and the other things that triers of fact get to weigh. 

But on the other hand, some of the Town's evidence the opinion points to is decidedly odd. Like "evidence that the Town was designed to accommodate visitors, who may not want to come if they could not access the beaches[.]" Slip op. at 16. That properties in the Town have been rented to visitors. Slip op.at 16-17. Evidence of "the longstanding perception that the Town's beaches are available for public use." Slip op.at 17 (emphasis added). The Mayor testifying about what other people felt. Id. ("The mayor, who moved to the Town as a child in 1955, testified that people 'just felt like the beach was there for us to enjoy and use.'").

While we're not sure that this type of evidence alone would suffice to make summary judgment appropriate, there seems to be enough other evidence of actual public use to get to the trier of fact. We hope on remand that there's a better filtering of what comes in and what stays out. 

Buending v. Town of Redington Beach, No. 20-11354 (11th Cir. Aug. 20, 2021)

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Keynote: Do Animals Have Property Rights?
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Property Rights as Civil Rights
• Eminent Domain National Update
• Federal Court and the Daubert Challenge: How to Prepare
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

We Already Have An Express Easement Allowing Public Foot Traffic On Private Beach. Walton County: Hold My Beer!

The U.S. Court of Appeals for the Eleventh Circuit's recent opinion in A Flock of Seagirls LLC v. Walton County, No. 20-12584 (Aug. 5, 2021) isn't about judicial takings, or even about eminent domain (even though a straight condemnation turned up in the factual background).

But this blog's frequently flyers might want to take a read anyhow because it involves public and private rights of use in the dry-sand beach along the Florida coast. We know those issues are closely related to our faves like public trust, judicial takings and the like, so read on.

Here are the facts. The county holds an express easement along two beachfront lots for "a way of passage, on or by foot only" that the State of Florida earlier had exacted from the owners in the course of eminent domain proceedings. But if the county tries to use the easement for some other purpose, the easement is deemed abandoned by its express terms.

So what did the County do? Was it satisfied that it has, on behalf of the public, an express easement allowing people to walk over what is admittedly private property in Florida? Everything good, right?

No, not good enough. It adopted an ordinance "purporting to establish the public’s right to use the dry-sand area of all beaches for 'recreational' purposes—including, among others, 'sunbathing,' 'picnicking,' 'fishing,' 'swimming or surfing off the beach,' and 'building sand creations.'" Slip op. at 2.

Two of the owners of the servient estates sued, claiming that the easements had been abandoned. The District Court agreed with the county that this didn't qualify and granted summary judgment. The Eleventh Circuit reversed.

Applying the "ordinary contract-construction principles," the court held that under their ordinary and common meaning, the abandonment clause limited the use, and that the county ordinance allowed the property to be used for some other purposes. The abandonment clause applied if the county "attempted" to make more use, not only if it actually made the use. You can't sunbathe, picnic, fish, swim and surf off the beach if you are limited to using it as "a way of passage." Slip op. at 9. Locomotive purpose isn't the "recreational purpose" set out in the ordinance.

Yes, walkers may incidentally stop while they are making their way of passage and thus some of the uses noted in the ordinance may not offend the uses allowed by the easement, but others "go so far beyond incidental stopping that they can't fairly be deemed 'reasonably necessary for the full enjoyment of the easement itself.'" Slip op. at 10.

The court also rejected the county's argument that the abandonment clause could not limit the public's right to full recreational use of the dry-sand beach. It held that Florida's common law customary-use doctrine right of the public to full use of the beach "is not absolute or boundless," and did not independent of the easement allow the public to use the dry-sand beach. Slip op. at 12. 

Nor did the "perpetual" clause in the easement itself mean that it could not be abandoned. That's kind of a silly reading of an instrument that also contains an abandonment clause. In other words, yes, the easement was perpetual ... unless you abandon it, county! Maybe that ordinance wasn't such a good idea after all.

Finally, the court rejected the county's argument that the eminent domain consent judgment by which the easement was created back in the day did not make the abandonment clause inapplicable. The judgment used the term "permanent public pedestrian access," but like the perpetual clause noted above, the easement was only permanent as long as the county didn't do anything to abandon it.

So now, instead of having the right to walk on private beaches, the public gets nothing, good day Sir!. Like this recent case, we're filing this one under the "sure you want to do that?" department. Or maybe the "give 'em an inch and they'll take a mile" department. Maybe both.

[Any finally - yes, we know the appellant is A Flock of Seagirls LLC, and the song is by A Flock of Seagulls, but the minute we read the caption the song just popped in our head and never left. Sorry about the Ohrwurm.]

A Flock of Seagirls LLC v. Walton County, No. 20-12584 (11th Cir. Aug. 5, 2021)

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

HAWSCT: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object

In Protect and Preserve Kahoma Ahupuaa Ass'n v. Maui Planning Comm'n, No. SCWC-15-0000478 (June 16, 2021), the Hawaii Supreme Court reaffirmed the idea that all members of the public have a right under the Hawaii Constitution to a "clean and healthful environment," and that this is a "property" right entitled to due process protection under the state constitution. We say "reaffirmed" because this is merely the latest case so holding (see here for the first).

Like a lot of important Hawaii cases, this one came up in the context of standing to participate in the administrative review process. A Maui developer sought a permit under the Hawaii Coastal Zone Management Act from the Maui Planning Commission for an affordable housing project near Lahaina. Members of the Association, all of whom asserted they owned property adjacent to the project, asked the Planning Commission to intervene in the admin proceeding to object to the issuance of a  CZMA permit. The Association itself also sought intervention, asserting it had a stake in the outcome because the project might impact its environmental interests (things like local traffic, beach access, tsunami evacuation congestion, the cultural and historic importance of the land, storm water drainage, scenic views), and the sale and rental values of its members' properties. Slip op. at 8-9. The Commission declined, concluding the proposed intervenors did not have standing. 

The Association appealed to the circuit (trial) court under the Administrative Procedures Act, which affirmed. On secondary appeal, the Court of Appeals agreed with the Association that its members had standing because their environmental interests were threatened by the project. The developer sought discretionary review by the Supreme Court.

The court affirmed. The Association's members have standing to assert their constitutional due process property right to a clean and healthful environment. As we noted above, the court's conclusion that the Association's members had standing and that the Commission therefore wrongly denied its request to intervene -- as radical as that may be -- is not really a new one. In In re Maui Electric Co., 141 Haw. 249, 408 P.3d 1 (2017), the court already held the same. The only extension here is that the court put it in context of a shoreline development permit.

The court was careful to (supposedly) curb the extent of its ruling by noting that the property right in a clean and healthful environment is "defined by" the CZMA. See slip op. at 18. But this isn't really any kind of real limitation, since all it requires a potential intervenor do is connect the environmental right alleged to some statute, rule, or ordinance that might conceivably involve that right. As the opinion itself demonstrates, that task is an awfully simple one. The court easily made the connection by noting that the CZMA is a "law relating to environmental quality" (a very broad category under Hawaii law). And in administrative proceedings implementing these statutes, rules, or ordinances, the connection is even more facile, because by definition, the proceeding meets the "defined by" test.  

Several thoughts:

• The decision seems like an unnecessary reach. Long ago, in Town v. Land Use Comm'n, 55 Haw. 538, 524 P.2d 84 (1974), the Supreme Court concluded that neighboring property owners have a property interest (a real and distinct property interest) in administrative proceedings that might impact those rights. Here, the Association members alleged Town standing. Seems like that should have resolved the standing issue without going further.
• Environmental standing is so broad, it has effectively swallowed up all "lesser" bases for standing, such as Town. The connection between a potential intervenor's environmental property rights, and some statute, rule, or ordinance is beyond easy to make, so why would any intervenor allege anything else but environmental standing?
• Is there a limiting principle on the scope of environmental standing? If there is, we can't see any.
• On the other hand, Hawaii's standing bar is already so notoriously low, it has little substantive consequence. Standing, as you know, is designed to keep courts away from cases that are more policy than legal disputes. Not being subject to Article III case and controversy requirements as are federal courts, the Hawaii courts have crafted their own standing doctrines, primarily to avoid advisory opinions. But that bar is already very low in original jurisdiction actions, and even lower in administrative proceedings that the doctrine fails to serve its purported function. Standing is simply a pleading game that no competent lawyer should fail: come on in, the water's fine!
• One word of caution: the court's holding that environmental interests are "property" places the rationale squarely within the "legitimate claim of entitlement" type of government-created property for purposes only of procedural due process (the type of interest that gets your some kind of pre-deprivation notice and some opportunity to be heard), and to that extent, the ruling is limited. This case and its progeny do not signal that the Hawaii Supreme Court is expanding property rights (and by those we mean actual property rights) in any way. That may come in other cases, but not this one.

Will this be the last case which concludes that generalized environmental interests are property under Hawaii law? We doubt it, so stay tuned.

Protect and Preserve Kahoma Ahupuaa Ass'n v. Maui Planning Comm'n, No. SCWC-15-0000478 (Haw. June 16, 2021)

New Article: "Takings, PASH, and The Changing Coastal Environment" (U. Haw. L. Rev., forthcoming)

Back in February, we were honored to be part of the University of Hawaii Law Review's symposium "25 Years of PASH," a retrospective of one of the Hawaii Supreme Court's most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH). 

At the conference, we spoke on the panel about "PASH and the Changing Coastal Environment" (see video here at the 2:02:25 mark if you want to watch our panel's summations).

The speakers also produced short written comments for the Law Review's upcoming issue, and ours is finally in a shape where we think it is OK for public consumption, so we've posted it on SSRN here (or you can download the pdf "Takings, PASH, and the Changing Coastal Environment").

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

From the Introduction:

The topic of this portion of the Symposium is “Takings and the Changing Coastal Environment” and in this comment I focus on the “takings” part of that title, as well as offer some thoughts on our guiding subject, the Hawai‘i Supreme Court’s decision from a quarter-century ago in PASH, which most famously noted “that the western concept of exclusivity is not universally applicable in Hawaii.” How might this statement be considered today through the lens of property law and property rights, especially if we account for the changes in the U.S. Supreme Court’s approach to takings in the time since PASH was decided? And what implications does PASH have, if any, for property rights in the coastal zone?

This comment is in three parts. Section I summarizes the PASH opinion, and concludes that the jurisdictional questions presented in the case should have resolved the case, and the court should have avoided the takings questions, and the court reached out to resolve an issue it need not have. Next, Sections II, II, and IV offer up my three main criticisms of PASH, the first on the court’s seemingly incomplete view of how Hawai‘i property law treated the right to exclude, the second on whether defining “property” for purposes of federal takings analysis is only a matter of state law, and the third on separation of powers. Finally, Section V concludes with some thoughts about how courts should consider property rights in a changing coastal environment in light of these criticisms of PASH.

The entire symposium issue should be pretty worthwhile reading, if the conference itself is any indication. Good stuff.

Cal App: Taking Verdict Affirmed - When City Asserts That Its No-Development Law "trumps whatever you might submit," It Would Have Been Futile For Property Owner To Submit Development Application

We suggest you take a read through the California Court of Appeal's opinion in Felkay v. City of Santa Barbara, No. B304964 (Mar. 18, 2021). It's all there: Lucas wipeout takings, futility and exhaustion, coastal zone property rights.

This is an inverse condemnation case, seeing compensation for the city denying the owner any economically beneficial use of his property, because it was on a bluff face. Under the city's ordinances, bluff faces can't be built on. The planning commission staff said so, but they also recommended to the commission that this would be a taking, and the commission should therefore employ the takings safety-valve provision in the ordinance which allows the city to approve development if denial would be a taking (to paraphrase that old lung-dart commercial, "it's better to switch than to fight").

"No deal" the commission said, rejecting staff's recommendation, "we'll show 'em who is boss! We'd rather fight. Our law says there's no building on land we think is on a bluff face." City council concluded the same.

Property owner then filed both a writ of administrative mandate (APA appeal for all you non-Californians) and an inverse condemnation complaint, collectively asking the court to allow development and require compensation. Responding to the writ request, the city argued that substantial evidence supported its conclusion that the owner's land fit within the definition of "bluff," and the court agreed. But the court allowed the inverse claim to go to trial to test the city's claim that the takings/inverse claim wasn't ripe (hey, there may be other uses that can be made on that bluff!), and to determine compensation. 

The city's project planner (Kennedy) testified, and when asked by the trial judge whether anything could be built on property deemed to be on a bluff, she responded:

“I would say that they received a denial for that, so that’s the case.” The court later asked Kennedy why the city did not just tell Felkay at the beginning that “8.2 trumps whatever you might submit. We’re not going to allow anything on the bluff face. Don’t submit anything. . . .

Slip op. at 6. The court concluded that it would be futile for the owner to seek further denials of development, and that there was a taking. After the court concluded there was a taking, it gave the city a choice: pay up for the taking or back off. The court convened a jury to determine compensation. The jury awarded compensation of $2.4 million.

The court of appeal affirmed both the ripeness conclusion and the (unappealed) jury verdict:

The city contends that the inverse condemnation claim was not ripe because after the city denied his permit application, Felkay did not submit a revised application. We disagree.

...

The trial court found the city’s expert, Kennedy, to be “a defining witness in the case” who “convinced [the court] that there would be NO POINT in going back to seek mitigation.” The court did not err in crediting her testimony. (Cf. Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348 [commission not estopped by staff member’s telephone call that applicant need not attend hearing].) Felkay was not required to submit a second proposal because the city “made plain” it would not allow any development below the 127-foot elevation, and because the area above that elevation was “not buildable.”

Slip op. at 9, 11.

In short, when the law itself prohibits any development, and that is confirmed both by the city's own actions and the testimony of its expert that the law "trumps" any application, an owner doesn't need to ask to get denied again.

Check it out.

Felkay v. City of Santa Barbara, No. B304964 (Cal. App. Mar. 18, 2021)

PASH Bash: U. Hawaii Law Review Symposium - "25 Years of PASH" (Feb. 5, 2021)

Mention the term "PASH" to any dirt lawyer in the 50th State, and they'll nod in understanding. It's an 808 shibboleth -- a kind of local property password -- that signals that you've been around the block and know your stuff.

On one hand, it is simply an acronym for Public Access Shoreline Hawaii, the plaintiff/petitioner in the (in)famous case Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm'n, 903 P.2d 1246 (Haw. 1995). On the other, however, it has evolved into shorthand for a number of things: from the technically accurate - native Hawaiian customary and traditional rights and practices under the Hawaii Constitution ("I was chasing a pua'a on private property, so I cannot be convicted of trespass because I was exercising my PASH rights"); to generically and cheekily - the ability to access the beach and shoreline ("Surf's up today, let's go practice some PASH rights!"); and with irony - judicial activism ("The Supreme Court sure PASH'ed that case!").

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

Soon after PASH, the Hawaii Supreme Court held that this right only applied on less-than-developed land. Why, the court has never really told us. After all, the right as set out in the text of the Hawaii Constitution doesn't distinguish between developed and undeveloped land, and as far as we can tell, neither did Hawaiian custom and practice. Maybe the court realized that the practical implications of a strict application of PASH in the absence of such a judicially-created limitation were enormous. We're not sure.

Who'd have thought that it has been a quarter century since the decision came out? (Probably not the editors of the University of Hawaii Law Review, many of whom, we'd imagine, were keiki at the time; but we digress.) But it has. But no matter, PASH rights have been a part of the conversation for more than two decades.

In February, the Law Review is putting together a retrospective and is devoting an issue of the upcoming volume to a discussion of the PASH case and how the last 25 years have gone.

We're going to be a part of the (online) Symposium on February 5, 2021, speaking about "Takings and the Changing Coastal Environment" (11am - 1pm Hawaii Time). We'll be joined by Colin Lee (a UH student who has authored an intriguing piece on PASH), Sam Lemmo (Admistrator of the State of Hawaii Office of Conservation and Coastal Lands), and Bill Wynhoff (Supervising Deputy AG, who in our opinion, is the most knowledgeable career public-service lawyer on these issues). Our discussion is sure to be lively, and will be moderated by UH lawprof David Callies.

Register for the entire program here (no cost). Our Damon Key colleague Mark M. Murakami is presenting on "The Proper Role of the Court: Restoring Justice Through the Public Trust Doctrine." The entire program is worth attending.

We hope you sign up, whether you are an old hand at PASH or a newcomer.

U. Haw. L. Rev. Symposium: 25 Years of PASH (Feb. 5, 2021)

 

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

Recording Now Available In Virginia Supreme Court Oral Arguments In Takings, Property, And Public Trust Case

We listened live last week, but the court has now made the recording available in Johnson v. City of Suffolk.

This is what we call the "oyster takings" case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting).

This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of jus publicum. The oystermen own a lease from the State of Virginia for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under the Virginia Constitution's taking or damaging clause (article I, § 11).

Very interesting arguments that focused in large part on the "stick" question. What is the nature of the property right? Do the oystermen have a property right to useable, unpolluted oysters? Does the City have a duty to not put sewage into the river? Does it matter that the City lacks the power to condemn oysters by using its power of eminent domain. What is the effect of statutes which the Virginia General Assembly adopted after Darling, which limit the ability of municipalities to pollute? Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question.

Stay tuned.

Condemnor Protip From Florida: Choose Wisely (Make Clear What You Want To Take)

In Altman v. Brevard County, No. 5D19-1839 (July 10, 2020), the Florida District Court of Appeal considered a host of owner objections to a taking of easements over five beachfront lots:

(1) the County was required to obtain separate resolutions for each taking; (2) the County’s petition in eminent domain did not strictly comply with the Florida Statutes; (3) the resolution on which the County based its petition was nullified by an amended resolution; (4) the trial court crafted takings outside of the pleadings; (5) the County failed to establish a reasonable necessity for the takings; and (6) the County failed to present a good faith estimate of value for each easement.

Slip op. at 2.

The court rejected most of the objections, but agreed with three: "[w]e find that the County’s petition failed because it did not provide clear legal descriptions of the properties to be acquired and that the County failed to establish a reasonable necessity for the public use aspect of the takings. Additionally, the trial court crafted takings outside of the pleadings." Id.

The court's analysis turned on the way the land was described. The project was to take easements to allow the placement of sand on county beaches "in order to maintain safe and sufficient hurricane evacuation routes, protect upland structures and infrastructures, preserve nesting habitats for sea turtles, and to preserve areas for public recreation." Slip op. at 2. The County's project engineer testified that the County's partnership with the Corps of Engineers required that the County ensured the "continued public use of such shores compatible with the authorized purposes of the project ...." Slip op. at 6. Otherwise, no federal dollars.

The resolutions described the western boundaries of properties by the "14 foot elevation contour" defined by either the vegetation line or the seawall at the 14 foot contour. The metes-and-bounds descriptions described the boundary as the 14 foot elevation contour. 

The County did a survey, but looked only at the 14 foot contour line and not vegetation line. The surveyor testified that he wasn't aware of the alternative descriptions of the boundary lines as the vegetation line. The County also had reasons for choosing the 14 foot line.

Sensing trouble, the County asked to amend its complaint to clarify the western boundary of the easements to be acquired. We really think it should be the 14 foot line, Your Honor. Attached to the proposed amended complaint was an amended resolution which also clarified the 14 foot line as the boundary. This is just clarification, and no-harm-no-foul, argued the County.

The trial court denied amendment. You can't change the description in the complaint to be different than the original resolution. After the trial judge informed the County that it was its choice about what to do next--"With that, you’ve got some tough choices. You can proceed. You can take a voluntary dismissal. You've got to figure out strategically what you want to do."-- the County "elected to go forward with its original Petition." Slip op. at 9. After a hearing, the trial court was satisfied: the necessity of the easements was "obvious," and the County had clarified the boundary. Go ahead and take, County, subject to certain conditions the court imposed about the easements' descriptions. See slip op. at 11.

Not so fast, held the Court of Appeal. The condemnor must make clear what it is taking:

However, we find that although the County technically included legal descriptions of the easements, the County’s Petition was defective because the legal descriptions provided two potential easement boundaries, rendering them unclear. The original Resolution authorized an easement on each property, with a western boundary at either the 14-foot elevation contour line or the seaward edge of the eroded dune bluff, depending on which was further seaward. Thus, for each property, the County should have determined which potential boundary line was further seaward and petitioned for an easement with that boundary line.

Slip op.at 14 (footnote omitted). That "depending" language wasn't giving the County the choice of choosing which it preferred (such that it was free to choose the 14 foot line), but was commanding the County to go figure out whether the vegetation line of the 14 foot line was further seaward. Whichever it was, choose that.

And what of necessity? As we know, these type of challenges are tough. Courts may defer to the condemnor's claim that a taking is for public use, but when it comes to necessity challenges, the judiciary's deference goes through the roof. Courts are super-reluctant to examine the ends-means fit between the asserted public use, and whether the property is being taken for that public use.

The court concluded that there wasn't enough of a fit because the public purposes of the project exceeded the scope of what the Corps of Engineers required for federal funding:

Even the witnesses for the County recognized that the County sought a greater public use than was required by the Corps. Bodge recognized that while the Agreement required the County to ensure “continued public use” of the shore, the proposed easements did not limit the use to “continued” or “existing” use because they stated, “[t]ogether with the right of public use only on the property.” Likewise, McGarry testified that in order to receive federal grant money for the Project, only the “open sandy beach” portion of each condemned parcel had to be publicly accessible. Accordingly, pursuant to Cordones, the County failed to establish a reasonable necessity for the public use aspect of the easements.

Slip op. at 19. 

So what lessons can we draft from the decision? Stick to the resolution. If the resolution is bad, the remedy is a new resolution, not amendment. These type of things are not to be approached loosely, and then fixed on the fly. And there may not be a lot in the necessity doctrine on which to hang your hat -- but in the right case, it does have meaning.

Thus, condemnors the choice is solely yours: choose wisely.  

Altman v. Brevard County, No. 5D19-1839 (Fla. Dist. Ct. App. July 10, 2020)

Land Use Also On The Fall Semester Agenda At William And Mary Law

This fall, we'll be back at the William and Mary Law School (hopefully in-person, depending on the circumstances and the yet-to-be-announced approach to be taken by the College of William and Mary), teaching two of our favorite subjects.

Not only will this be the third time leading Eminent Domain and Property Rights (Law 608), but we'll also be undertaking another subject, Land Use Control (Law 425). This semester, we're stepping into the (big, figuratively speaking) shoes of Professor Lynda Butler who recently retired after a stellar and trailblazing career. Thankfully, Lynda is continuing to lead the Brigham-Kanner Property Rights Project and is underway with planning October's Brigham-Kanner Conference, honoring Harvard lawprof Henry Smith.

Land Use is, of course, related to Eminent Domain and Property Rights, but the law school understands that they are each worthy of separate study, and they should not be folded into a single course (or, worse yet, treated only as part of the introductory first-year Property course). We're developing the syllabus now, but we're going to be covering topics such as:

• zoning
• vested rights
• who decides - agencies or courts?
• RLUIPA and other religious land uses
• First Amendment and land use law
• land use as a means of social control
• Acronym Central: TIFs, PUD's, NIMBYs and YIMBYs
• "In accordance with a comprehensive plan..."
• the uneasy relationship between land use and environmental law
• ...and more!

If you are a student, the course is now available on the law school system. It is a full three-credits, and we'll be meeting Mondays and Wednesdays at 10am. We're not sure whether the final will be a paper or an exam, but if you have thoughts about that subject or topics you'd like to cover, please let me know.

Virginia Supreme Court To Consider Whether City Has The Right To Pollute Chesapeake Bay

A development in the "oyster takings" case that we've been following as it has worked its way up to the Virginia Supreme court: that court today issued this Order, in which it awarded an appeal by Nansemond River oystermen (and the City of Suffolk's cross-appeal) who claim that their property was taken when the City dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting). Along with our William and Mary Law class, we took a field trip to the site last year (video above).

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under the Virginia Constitution's taking or damaging clause (article I, § 11).

The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919). The court acknowledged that the oystermen's lease is property, but concluded that the city and sanitation district possess a superior right to pollute the river with sewage. So the oystermen asked the Virginia Supreme Court for discretionary review. Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question.

Now that the court has accepted the discretionary appeal, we shall see what this case brings.

Here are our prior posts on the case:

• We Join IJ's "Short Circuit" Podcast To Talk Virginia Oyster Takings, Colorado Wild Eminent Domain Abuse Cert Petition, And Berman International
• SCOVA Oral Argument: Does A City Have The Right To Pollute Chesapeake Bay?
• Videos: Oyster Takings On The Nansemond River
• City: We Have The Right To Pollute - Virginia Oystemen's Petition Asserting A Taking

Stay tuned, we'll post more when available.

Order Awarding Appeal, Johnson v. City of Suffolk, No, 191563 (Va. May 18, 2020)

No TRO In Private Beach Taking-By-Shutdown Case

Unlike a sibling federal court in a similar case (see that court's TRO order below), a Florida court has declined an emergency motion challenging government officials' coronavirus-related shut-down and stay away orders.

This is the case we've been following in which property owners challenge the local government's order that they stay off beaches. The difference between this and other cases ordering people to keep away from beaches and parks is that in this case, the beaches are alleged to be private. The complaint is posted here. 

Although we do not yet have a written order denying the TRO, the court's minute order notes, "the Court orally denies the Emergency Motion." See also "Judge rules against Walton beach property owners who sought exemption from closure order" from the local newspaper, which reported on the hearing:

During the hearing Vinson delved, at times, into the overriding issues that Walton County has faced for years now with its beaches and ongoing battles over what white sand coastline can be construed as public or private property.

“This case boils down to the definition of what is the beach,” he said, asking an attorney for the Sheriff’s Office if, under the existing ordinance, sanctions could be levied for someone sitting in a chair in the sand outside their back door.

“You can’t have the sheriff saying you can’t go out into your back door, five or 10 feet from your back door,” Vinson said. “To anyone looking at the beach, sometimes you can’t tell where the beach really ends. Where does the beach end? That is the gray area I think we are really concerned with.”

In order to have won the emergency injunction, Safriet’s team was required to convince Judge Vinson that the property owners would have been likely to win at trial. He ruled Monday he did not believe that to be the case.

He also debunked the property owners’ argument that they would suffer irreparable harm if the injunction were not granted and that granting it serves the public good.

Vinson also expressed concern with the way the county’s amended ordinance is “construed and applied.”

He postulated an arbitrary distance of 10 yards from a permanent structure should be considered a safe space on a beach property from which the county emergency ordinance could not be applied.

“Public beach on the Gulf of Mexico is not defined by legal ownership, but by what is the beach,” Vinson said.

If you want to get a sense of what arguments are in play, here are the briefs of the parties (as well as one defendant's motion to dismiss, which is not yet scheduled for a hearing):

• Property Owners' Memorandum in Support of the Present Plaintiffs' Emergency Motion for a Preliminary Injunction
• Walton County's Response in Opposition to Plaintiffs' Emergency Motion for Preliminary Injunction
• Motion to Dismiss by Sheriff Michael A. Adkinson, Jr.

The reason we posted the order granting a TRO in the other challenge (a case in which the plaintiffs do not assert a taking, but focus on their First Amendment rights to practice their religion), is that the plaintiffs in the Florida beach case argued that it was instructive about how the Florida court should consider the issue. In addition, it is an interesting read for any of you keeping up on the multiple challenges to shut-down orders nationwide. 

Temporary Restraining Order, On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky.... 

Private Beach Owners: Closing All Beaches Is A Physical Taking

Here's yet another complaint alleging that a virus-related order is a taking, this time with an interesting twist (other complaints here, here and here). 

The twist is that the plaintiff/property owners (who include former Arkansas governor Mike Huckabee) assert that they are being prevented from using their own residential property. The complaint asserts that sheriffs and code enforcement officers have trespassed on the owners' private beaches by "patrolling," and that the officers "have physically prevented Plaintiffs from being able to use or even set foot in their own backyards." Complaint at 11. 

The complaint seeks a declaratory judgment, an injunction, and just compensation. They also assert due process and search-and-seizure claims, that the emergency orders were preempted by other orders allowing the plaintiffs' uses, and a claim under the Florida Constitution for breach of the right of privacy.

Will there be more of these? Bien sûr. 

Complaint, Dodero v. Walton County, No. 3:30-cv-05358-RV-HTC (N.D. Fla. Apr. 6, 2020) 

Backing Back Into Williamson County: Federal Court Case Tees Up 11th Amendment Immunity For Takings

We don't usually post trial court decisions, but when one comes along that tees up some interesting issues and is likely to get pushed further up the food chain, we're all ears.

That's the case with the Eastern District of North Carolina's order in Zito v. North Carolina Coastal Res. Comm'n, No. 2:19-CV-11-D (Mar. 27, 2020). A North Carolina property owner alleged that the application of the Commission's shoreline setback rules are a taking, and filed a suit in federal court. Yes, this is a federal court deciding a regulatory takings claim (yay, Knick). 

The property owners did all of the right things to ripen their claim. They obtained a final agency decision (helpfully labeled the "Final Agency Decision") and were denied a variance. And although the owners filed their federal lawsuit before Knick, by the time the District Court was considering the Commission's motion to dismiss, the Supreme Court had issued its opinion, so there was no need to pursue state procedures for compensation. 

So the case was ripe, right? Not really: the District Court dismissed the complaint for lack of jurisdiction because North Carolina courts remain open to consider the owners' takings claim. What alchemy is this?

Relying on Eleventh Amendment immunity, the court concluded that the owners could not pursue a federal takings claim for just compensation in federal court because the state courts of North Carolina could adjudicate the claim. Sounds like Williamson County's "state procedures" requirement, doesn't it?

But before you go ballistic, realize the District Court didn't just make this up. It was bound by the Fourth Circuit's ruling from a few years ago (Hutto v. South Carolina Retirement System, 773 F.3d 536 (4th Cir. 20914)) which held that "'the Eleventh Amendment bars Fifth Amendment taking claims against States in federal court where the State's courts remain open to adjudicate such claims." Slip op. at 9 (quoting Hutto, 773 F.3d at 552). 

The District Court rejected the owners' argument that the self-executing nature of the Just Compensation Clause:

This court cannot ignore binding Fourth Circuit precedent, even if the Zitos offer a persuasive rationale for doing so. ... Hutto controls the disposition of this case, and this court must follow it until either the Fourth Circuit sitting en banc or the Supreme Court instructs otherwise.

Slip op. at 9. 

Additionally, the District Court held that the big "self-executing" footnote in First English that we like to rely on isn't as controlling as a "tight analogy" that Hutto relied on to support its Williamson-County-by-another-name rationale:

As for footnote nine in First English, footnote nine cannot bear the weight that the Zitos place on it. See First English, 482 U.S. at 316 n.9. First, footnote nine is dicta in that the Court was responding not to a principal argument of the parties, but rather to the United States' amicus brief. See id. Second, footnote nine was not essential to deciding First English. See id. Indeed, First English did not concern the Eleventh Amendment or even mention it. Rather, in First English, the Supreme Court reversed the California First District Court of Appeal and held that a landowner who claimed that his property has been ''taken" in violation of the Fifth and Fourteenth Amendments by a "land-use regulation may [] recover damages for the time before it is finally determined that the regulation constitutes a 'taking' of his property." Id. at 306---07.

Slip op. at 11.

The District Court concluded, "[j]ust as states can invoke sovereign immunity for tax disputes in federal court so long as a state forum remains open, so too states can invoke sovereign immunity for takings claims in federal court so long as a state forum remains open." Slip op. at 10 (emphasis original).   

The court determined that a suit against the Commission for just compensation was in fact, a suit against the state treasury and thus subject to the Eleventh Amendment. finally, the court held that the property owners could pursue claims for compensation in North Carolina's courts. Williamson County's state procedures requirement lives!

In addition to the District Court's earlier note that it it up to the Fourth Circuit en banc to resolve whether Hutto's rule is still good, the order also teed up the conflict between Knick and the Eleventh Amendment:

Of course, the Court in Knick did not consider sovereign immunity under the Eleventh Amendment because Knick involved a suit between a private property owner and a locality that was not entitled to sovereign immunity under the Eleventh Amendment. See Knick, 139 S. Ct. at 2167-71; Bay Point Properties, Inc. v. Miss. Transp. Comm'n, 937 F.3d 454, 456-57 (5th Cir.), petition for cert. filed, No. 19-798 (2019); Williams v. Utah Dep't of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019). But in reiterating the self-executing nature of the Just Compensation Clause, the Court in Knick foreshadows the day when the Court will have to address the interplay between the Fifth Amendment's Just Compensation Clause and the Eleventh Amendment. Cf. Knick, 139 S. Ct. at 2171; Lumbard v. City of Ann Arbor, 913 F.3d 585, 591 (6th Cir.) (Kethledge, J., concurring) ("But the Takings Clause does not say that private property shall not 'be taken for public use, without just compensation, and without remedy in state court.' Instead the Clause says that private property shall not 'be taken for public use, without just compensation' period."), cert. denied, 140 S. Ct. 267 (2019). Although Hutto binds this court, the court recognizes the force of the Zitos' arguments, notes the significant constitutional issues that the Zitos raise, and acknowledges that ''the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court." Knick, 139 S. Ct. at 2167.

Slip op. at 19-20.

Finally, we leave you with this thought: instead of suing under section 1983 for damages, how about either raising the claim directly under the Fifth and Fourteenth Amendments, or seeking a 1983 injunction that compels the state to fulfill its obligation to provide compensation? We know that is a sharp distinction, but to us it is one that is consistent with the approach taken in some jurisdictions that the remedy for an inverse condemnation or regulatory taking isn't to sue for compensation, but to seek mandamus to compel the government to institute a condemnation case to pay for what it has taken. At least one federal court recently accepted that approach (see the Ninth Circuit's "no 11th Amendment immunity rationale" for a federal takings claim seeking an injunction to compel a state to return wrongly withheld interest).

Next up: Fourth Circuit.  

Order, Zito v. North Carolina Coastal Res. Comm'n, No. 2:19-CV-11-D (E.D.N.C. Mar. 27, 2020) 

SCOVA Oral Argument: Does A City Have The Right To Pollute Chesapeake Bay?

Here's the latest in a case we've been following. We even visited the site with our class last year. 

Today, the Virginia Supreme Court heard argument on the petition for appeal (streaming above from the webstream, or download the mp3 here) in what we call the oyster case because it involves the property rights of Nansemond River oystermen, whose oyster beds were polluted by sewage from the City of Suffolk.

Bottom line from today's argument: no decision yet. These arguments are short (10 minutes), only the petitioner is allowed to argue, and today's argument did not elicit any questions from the three-Justice panel. So we wait. 

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under both the U.S. Constitution, and Virginia's taking or damaging clause. 

The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919) and a. The court acknowledged that the oystermen's lease is property, but concluded that the city and sanitation district possess a superior right to pollute the river with sewage.

So now the oystermen are asking the Virginia Supreme Court for discretionary review. Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question

Will this case be resolved by a century-old precedent that recognizes a local government's ability to pollute a public river with sewage? Have our notions of private property evolved since then? Will Virginia's greater recognition of property rights make a difference?

All questions that could be answered if the court accepts review. Stay tuned.  

Complaint: Honolulu Sues Gas Companies (For Nuisance) To Recover The Cost Of Sea-Level Rise

Make what you will of this 205-paragraph, 114 page (including 128 footnotes) Complaint, filed yesterday by the Acting Corporation Counsel for the City and County of Honolulu and a battery of outside lawyers against gasoline producers, alleging that they are responsible to pay the costs of sea-level rise and other symptoms of what the complaint calls the "climate crisis."  

It's a challenging read, but the fun part is in the claims for relief (fast forward to page 99), which include (for you property mavens) nuisance, private nuisance, and trespass (by flooding), as well as affirmative and negligent failure to warn of the dangers of fossil fuel products. 

Will this lawsuit go anywhere? Is a big municipal payday in the cards? Will it get to a local jury? Your guess is as good as ours. But we'll be following along, for sure.  

Complaint, City and County of Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (Haw. 1st Cir. Mar. 9, 2020) 

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights Course

If there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve.

In an upper-division course like "Eminent Domain and Property Rights Law," where we're dealing with some very high-level stuff and the quality of the students is uniformly excellent, that makes for some hard choices at this time of year. But we've wrapped up grading, and have submitted the official scores.

Although I cannot share with you all the papers themselves, I don't think my students would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about this area of law: 

• One Man's Castle is Another Man's Parking Lot: A Homeowner's Theory of Eminent Domain
• Native Title: Concept and Compensation
• May the Forest Be With You: John Does in Trees Fight Pipelines Using the Right to Include
• Apportioning "A Chicken Which Is Really Not Big Enough to Go Around": Why Courts Should Abandon the Undivided Fee Rule for the Aggregate of Interests Approach
• Madisonian Musings on Judicial Takings
• Why Knick v. Township of Scott Returned Takings Jurisprudence to the Values Behind the Fourteenth Amendment
• In the Aftermath of Arkansas Game & Fish Commission and Livingston v. Virginia Department of Transportation: Virginia Localities Need to Plan for Great Liability Risks From Flooding
• The Veterans of Foreign Wars Case and the Undivided Fee Rule: Just Compensation for More Than One Owner
• Up-Zoning: A New American Dream and Shifting Property Paradigm
• I Believe I Can (Maybe) Fly: A Survey of Proper Law Interaction With Drones
• EPA's Takings Liability for Climate Change Inaction
• Are Pipelines Public Uses? 
• In States We Trust: The Limits, and Lack Thereof, on the States' Power to Modify the Public Trust Doctrine
• The Public Use Requirement: Changes Over Time

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication somewhere. 

Finally, I can't resist cutting and pasting from one of the paper's footnotes: "For more on 'exclusionary vibes' and the power of eminent domain, see The Castle (Debra Choate 1997)." 

Obi-Wan has taught you well. 

California Coastal Comm'n: We're Suing Evil Rich Guy Who Is Blocking Access To The Forbidden Zone (Even Though Court Just Ruled The Other Way On The Same Issues In A Similar Case)

We gave up long ago expecting rationality and straight-up-the-middle narratives when it comes to cases about beaches and beach access. People get kind of nuts about that for some reason. We get why. Who doesn't love a beach? Even a beach that could serve as the location if Planet of the Apes is re-made again. Don't believe us? See this recent video. Or this story with a picture from the 1980s. 

But we overcame our usual reluctance to dive into these stories for the latest in a case we've been following, as it wound the way from California's trial and appeals courts, to the U.S. Supreme Court on a (denied) judicial takings cert petition, to the California legislature which was threatening to condemn and buy the property, to a recent unreported California appellate decision affirming a finding of no public easement, and now this, a recently-filed complaint against the owner by the State. 

The State of California Lands Commission and the Coastal Commission have sued the Silicon Valley billionaire owner, claiming that the access path over his private property is, in reality, publicly-owned property due to frequent historical use of the trail by the public. Who needs to condemn something "we" already own!

The owner of course contests that, and points to the recent unpublished court of appeal decision that affirmed a finding that the plaintiffs in that suit (Friends of Martin Beach) did not prove that any public access was adverse to the owner. The State has now raised what looks to us like very similar claims, so we shall see if that has any impact on this case.

We shall follow along. Stay tuned.

Complaint for Quiet Title, Declaratory Relief, and Injunctive Relief, California State Lands Comm'n v. Mart... 

(Nearly) Last Chance To Join Us In Nashville For ALI-CLE's Eminent Domain Conference

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don't delay further and register now. We're on track to record attendance, so you don't want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals ... and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  

Brigham-Kanner Video: The "New New" Property, Judicial Takings, And More

Here's the video of our October panel at the 2019 Brigham-Kanner Property Rights conference during which we spoke about "The New New Property: Public Resources and Private Rights."

Our panel also discussed judicial takings, Stop the Beach, (a case in which speaker Ken Bell -- then a Justice on the Florida Supreme Court) ruled on), and Professor Henry Smith's work. 

As the law school's YouTube channel describes it: Panelists include Ken Bell, Robert H. Thomas and Henry E. Smith. Katherine Mims Crocker of William & Mary Law School serves as moderator. The Brigham-Kanner Property Rights Conference is hosted each year by the William & Mary Property Rights Project at William & Mary Law School. Recorded at the Law School on October 4, 2019.

Check it out. The videos of the other panels are posted here. 

Space Still Available For ALI-CLE Eminent Domain Conference, Nashville Jan 23-25, 2020

If you get this, you need to attend the 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, January 23-25, 2020, in Nashville.

And if you don't get this, you need to attend more. 

Register here. 

New Fed Ct Judicial Takings Complaint: Indiana Supreme Court "Transformed Established Law" Of Shoreline Ownership

Here's the Complaint filed earlier this month in an Indiana federal court, which alleges that the State of Indiana is liable for a judicial taking in a case we've been following. Yes, a judicial taking! 

You recall that in Gunderson v. Indiana, 90 N.E.3d 171 (Ind. 2018), the Indiana Supreme Court concluded that the public owns up to the ordinary high water mark on Lake Michigan and had done so all the way back to statehood in 1816. Problem is, according to the plaintiffs here, "undisputed local, state, and federal acknowledgement over the years" was otherwise - the law said that the property was private, not public. Thus (again, according to the Complaint), "the Gunderson judgment changed the law of the State of Indiana, as recognized by prior Indiana court precedent as well as federal, state, and local authorities." Complaint at 2.

We suggest you read the entire Complaint. It isn't that long, there are photos, and there is but a single count:

71. Gunderson transformed the established law by moving Plaintiffs’—and all other Indiana lakefront property owners’—property lines to the OHWM [Ordinary High Water Mark], irrespective of their deeds or titles. This change in established state law effected a taking of Plaintiffs’ property, particularly their previously private dry beach.

72. Because Indiana is immune from suits for damages in federal court, and Plaintiffs allege that Indiana’s highest court changed the law to effect a taking of their property, Plaintiffs lack a remedy at law against the State defendants and therefore may seek declaratory and injunctive relief.

Complaint at 25. 

It's been a while since a really big judicial takings case was in the pipeline, so we'll keep following along. Stay tuned. 

Complaint for Declaratory and Injunctive Relief, Pavlock v. Holcomb, No. 2:19-cv-00466 (N.D. Ind. Dec. 5,

What's At 712 4th Street, S.W., Washington DC? Your Invite To The 2020 ALI-CLE Eminent Domain Conference (Jan 23-25, Nashville)

We Join IJ's "Short Circuit" Podcast To Talk Virginia Oyster Takings, Colorado Wild Eminent Domain Abuse Cert Petition, And Berman International

Yesterday, our friends and colleagues at the Institute for Justice (Diana Simpson and Bob McNamara) welcomed us to their studios to record an episode of the "Short Circuit" podcast.

We talked property, takings, Virginia oysters, the cert petition about Colorado eminent domain abuse, and how the Supreme Court of the Republic of the Philippines would handle cases like Berman v. Parker and Hawaii Housing Authority v. Midkiff. 

Listen in, and subscribe to the podcast (we don't miss an ep). 

And yes, we really did write up yesterday's blog post from the Supreme Court steps. Proof:

Videos: Oyster Takings On The Nansemond River

Following up on the petition, filed last Friday, asking the Virginia Supreme Court to review a trial court's demurrer which failed to recognize that the owners of a state lease to harvest oysters in the Nansemond River have a property interest . The court concluded that the city and santitation district possess a superior right to pollute the river with sewage.

The case arose when the city and sanitation district declared the oysterbeds "condemned" during certain times of the year because they put sewage into the river. They denied compensation, and the trial court held that Darling v. City of Newport News, 249 U.S. 540 (1919) subjected the lease owners to the city's superior right to pollute.

We paid a visit to the site a couple of weeks ago to see the pollution source, and how the oysters are harvested in the river. The above video is from that trip. The below is from WAVY 10's report on the case.

City: We Have The Right To Pollute - Virginia Oystermen's Petition Asserting A Taking

Just filed: this Petition for Appeal in a case which our William and Mary Law class has a special interest in.

The above photo was taken a couple of weeks ago, when we paid a visit to the property owner/plaintiffs, the owners of a long-standing oyster business operating out of the City of Suffolk, Virginia. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under both the U.S. Constitution, and Virginia's taking or damaging clause.

The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919).  So now the oystermen have sought discretionary review in the Virginia Supreme Court.

Will this case be resolved by a century-old precedent that recognizes a local government's ability to pollute a public river with sewage? Have our notions of private property evolved since then? Will Virginia's greater recognition of property rights make a difference?

All good questions. So stay tuned. We shall follow this one closely, as we already have been doing.   

Petition for Appeal, Johnson v. City of Suffolk, No. ___ (Va. Nov. 22, 2019) 

Hot Take On The Maui Clean Water Act Arguments (Protip: ARRIVE EARLY)

Protip for the public line for SCOTUS arguments: you have to get there really early. As in really early. Before 5 am early. Because that's the time that we, along with some of our William and Mary Law students (pictured above, after the arguments), arrived at 1 First Street NE to take up our place in line yesterday for the arguments in the Maui Clean Water Act case. And we were -- literally -- the very last allowed in for the full arguments. We roadtripped it from Williamsburg (more on that in a future post), meaning that we awoke long before 5am, leaving the law school at an ungodly hour. It would have been a shame to have taken all that effort, only to not get in. So heads-up line standers: get there early.

Why all this effort, you may ask? After all, you can read the transcript the same day, or listen to the recording at the end of the week. Why bother being there in person? To us, there's nothing like witnessing it firsthand to catch some of the nuances. And the spectacle of U.S. Supreme Court arguments. The protests, the media scrum, the big-time lawyering. It is especially critical for soon-to-be-lawyers to see great advocates (all three who argued were, in our opinion, excellent), and observe the very jurists whose opinions they have been reading and analyzing during law school live and in-person (especially in this age of Celebrity Justices). I sure wish I had the chance to do this during my law education. Williamsburg is just within reasonable striking range of DC, so we figured we should make the effort. This is the second time we've done this (Knick was the first), and we're convinced the effort is worth it. 

As for impressions of the substance of the arguments, we think its going to be a very close one. Even though it is not bold to predict a split Court in nearly any Supreme Court case, we think this one merits it. It all turns on the language of the Clean Water Act, and what does the term "from" mean. Really. The advocates proposed various analogies about what the term means, using whiskey flasks, punchbowls, groceries. And there were all sorts of probable and improbable hypotheticals from the bench.  

In the end, the conclusion we reached is that the statute isn't all that clear one way or the other about what it means in the situation presented here: is the pollutant in the Pacific Ocean "from" the County of Maui's treated effluent injection well even though it was transported from the well to the ocean by groundwater? Several Justices pretty clearly thought yes, while others thought no. Reasonable minds apparently can differ. Which to us means that this case may be resolved more on policy grounds than by classic statutory interpretation (if there is even such a thing).

Thus, some of the Justices were looking for middle ground (see Justice Breyer's suggestion of a new "functional equivalent" test), while others (the Chief Justice, and Justices Gorsuch and Kavanaugh) probing about "limiting principles" on the Respondent's argument that any after-the-fact traceability from a point source to a jurisdictional water was enough to trigger CWA liability. That's a tough hill to die on, given the nearly unfettered liability that is triggered, so we're thinking the inability to articulate a viable limitation on liability may push several Justices to reject the argument. With several Justices appearing to have their minds set (Kagan, Sotomayor, Alito, and (presumably) Thomas), we think Justice Kavanaugh is going to be the fulcrum on this one. 

Finally, what's interesting about this case is the ongoing state court dispute about whether it has been settled. Most of the time, courts are not made aware of ongoing settlement efforts. Here, however, the Court was told about the settlement (a letter that, interestingly, no longer appears on the docket). A Justice might reasonably think to themselves: how strong is the Respondent's argument if it is so desperate to settle, especially at this stage of the game? 

So although the case was submitted yesterday, this one isn't over. It might be settled. It might not. The Court may rule by June, or it might not. 

Transcript, County of Maui v. Hawaii Wildlife Fund, No. 18-260 (U.S. Nov. 6, 2019) 

Cal App: Agency Has Power To Adjudicate Whether The Agency Itself Is Taking Property (Really)

Update 10/25/2019: an astute and seasoned correspondent writes that the issue of whether a property owner must raise constitutional issues in the administrative proceedings was settled in a published opinion that involved the same agency, the California Coastal Commission. See Healing v. Cal. Coastal Comm'n (1994) 22 Cal. App. 4th 1158 (we put in in California citation style just because) ("These [the takings questions] are questions for a court of law to decide at an evidentiary trial, not by mandamus review of an administrative record of proceedings where the parties' right to present evidence was limited by the very nature of the administrative process.").

Why the Coastal Commission doesn't know its own law, escapes us.  

++++++

Hat tip to Benjamin Rubin at the California Eminent Domain Report for writing up a recent opinion issued by the California Court of Appeal, Greene v. California Coastal Comm'n, No. B293301 (Oct. 9, 2019).  

We won't repeat his detailed analysis, but are posting the opinion here only to point out what we think is a critical flaw in the court's ruling.  In sum, the court concluded that the California Coastal Commission was within its authority when it imposed a truncated setback as a condition of beachfront homeowners building an addition to their home. With what it concluded was substantial evidence to support the condition, the court affirmed. That part of the case really didn't attract our attention that much.  

What did get our spider sense tingling was the court's ruling on the homeowners' takings claim. The owners asserted that imposing the condition violated their right to just compensation. But the court didn't address the merits of the claim, concluding instead that the plaintiffs had not exhausted their administrative remedies because they had not presented the takings issue to the Commission. California law, according to the court, requires an appellant to have presented "the 'exact issue'" to the Commission in order to preserve it. After all, the Commission is entitled to notice that you think that their decision works a taking. The arguments the Greenes made before the Commission "did not give the Commission an opportunity to evaluate that issue." Slip op. at  13.

But wait, this is both an appeal from an administrative (as they call them in California, a writ of administrative mandate), as well as an original jurisdiction complaint, right? See slip op.at 4 ("On May 5, 2017, the Greenes filed a petition for writ of administrative mandate and a complaint for declaratory and injunctive relief seeking to invalidate the five-foot setback condition.") How does an agency (the CCC isn't quite an executive branch agency as far as we can tell, but is one of those "fourth branch" hybrid agencies things) have any power to rule on issues of constitutional law? Especially its own actions? Only the courts may do that, so why is there any obligation for an administrative appellant to ask the agency itself not to act unconstitutionally? An agency's authority is limited to applying its enabling statute and its rules to the facts presented, not to determine whether its own actions are constitutional or not. Separation of powers, anyone? 

Benjamin's post asks a good question:

As such, you may be wondering if the result would have been different had the homeowners filed their takings claim in federal court as opposed to state court.  With the uptick in federal takings claims following the Supreme Court’s decision in Knick, we will likely get a definitive answer to that question in the near future.

A valid point. Especially true, given that it is hornbook law that you don't need to exhaust admin remedies in order to raise a § 1983 claim. The same reasons that animate that rule (the question of whether an agency has acted unconstitutionally isn't something that the agency itself can rule on) you'd think would apply with equal force under California law.  

Greene v. Cal. Coastal Comm'n, No. B293301 (Cal. Ct. App. Oct. 9, 2019) 

2019 Brigham-Kanner Conference: The New New Property - Public Resources And Private Rights

Here is a transcript of the remarks I delivered today at the 2019 Brigham-Kanner Property Rights Conference. I was honored to join lawprof Henry Smith and Florida Supreme Court Justice (ret.) Ken Bell (who authored the Florida court's opinion in Stop the Beach Renourishment which was challenged in SCOTUS as a "judicial taking") to speak about "Public Resources and Private Rights" (moderated by Professor Katherine Mims Crocker). After paying our respects to 2019 B-K Prize winner Professor Steven Eagle, we each addressed some part of the question.

----------------------------

The New New Property

As always, I bring to you tidings of "aloha" from the state where the legislature thought it was a going to reduce the price of residential housing by taking fee simple interests from "A" and giving them to "B," the leaseholders. 

Where now, the median price for a single-family, two bedroom, one bath, single wall house hovers just shy of $800 grand. 

And the state where the legislature thought that limiting the amount of rent gas companies could charge to their franchisees would somehow magically translate into lower gas prices at the pump for consumers. 

Where now, the price of gas is close to the highest in the nation -- although sorry, Californians, you may have us beat -- at or near $4 bucks a gallon. 

And in what may be a case of one-out-of-three-ain't-bad (so you don't write us off completely), our modest little jurisdiction is also responsible for at least one Supreme Court decision that we as property advocates really appreciate -- Kaiser Aetna v. United States, 444 U.S. 164 (1979) -- where the Court both affirmed that the right to exclude is one of those fundamental rights that is immune from interference by regulation unless first compensated, but also in one of the overlooked holdings of that case put in the context not of a fundamental right because it was recognized by state (Hawaii) law, but one sourced in the actions of Corps of Engineers personnel who had confirmed via a Section 10 Rivers and Harbors Act regulatory permit that Kaiser Aetna possessed the right to keep others out of the navigable marina it created:

While the consent of individual officials representing the United States cannot "estop" the United States, it can lead to the fruition of a number of expectancies embodied in the concept of "property" expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property.

I mention Kaiser Aetna because it is a good lead in to my portion of this panel, which is focusing on “Public Resources and Private Rights.” While we mostly speak of “property” as a private right, thanks in large part to our late colleague Charles Reich, whose place in the popular zeitgeist was secured by “The Greening of America,” but whom we lawyers will always remember as the author of the influential article “The New Property.” (And when I say "influential," I mean it is the most-cited article published by the Yale Law Journal. Ever.) 

That article got us to thinking about property in a different way: not exclusively as an instrument of private rights – most exemplified by the right to exclude – but as maybe something that looked a bit more like the commons. Things like government benefits, contracts, licenses, and in what may be the most famous instance, Board of Regents v. Roth, a government job. In that case a poor sap teaching at a state college who lacked tenure. (I feel your pain, brother.)

As we know the Court concluded that Professor Roth, who although he did not possess tenure, if he could show he possessed "new" property, could not be dismissed before the college conducted a hearing. In short, as what we might call Due Process Property. 

In the property rights context, we’ve seen similar rulings from the lower courts – most prominently the Second Circuit in Brody v. Port Chester (ask Dana Berliner about that one), the Tenth Circuit in M.A.K. Investment (before they declare your property blighted, they’ve got to tell you), and from my home court in Kellberg v. Yuen. 

How have government-granted or government-recognized “property” rights translated beyond the scope of individually-owned property? And can these Due Process property rights be translated to the language of takings-and-compensation property?

Two recent decisions highlight the differences. The first is from my home jurisdiction’s Supreme Court.

Now you might think that given the amount I give the business to my home court – Professor David Callies studied the opinions of our court over a 10 year time frame and revealed that it ruled in favor of environmental and similar plaintiffs nearly 90% of the time – that when our court issues a decision recognizing a new breed of “property” that I might rejoice. And it is a right that, as far as we can tell, no other court, state or federal, has ever recognized. 

The court concluded the Sierra Club possesses a constitutional property right in a "clean and healthful environment" entitling the organization to certain procedural protections under the state constitution’s due process of law clause. The ruling allowed the Club to intervene in a Public Utilities Commission petition regarding a power purchase agreement for a now-defunct electric plant on Maui. 

Here’s that again in case it didn't quite sink in: the court recognized a property right in a clean and healthful environment. 

Maui Electric filed an application with the State PUC, seeking the Commission's approval of an agreement between the utility and Hawaiian Commercial and Sugar Company which, if approved, would allow a rate increase to account for the additional production charges associated with the Puunene Plant, a coal-powered facility on former sugar lands in central Maui which transformed bagasse, the byproduct of sugar production, into electric power. We use the past tense because by the time the Supreme Court decided the case, the plant had closed, following the recent closure of the sugar plantation. No sugar plantation, no sugar, no bagasse. 

Sierra Club asked the PUC to intervene in the administrative process under the PUC's rules, asserting its own rights as well as several of its Maui members. The power plant, the petition asserted, would "impact Sierra Club's members' health, aesthetic, and recreational interests. Sierra Club also asserted its organizational interest in reducing Hawaii's dependence on imported fossil fuels and advancing a clean energy grid." 

Pretty vague stuff, and to me, more like policy questions than something best resolved by an adjudicative proceeding, but under existing judicial standing rules in similar cases in original jurisdiction actions brought in Hawaii courts, nothing too far from the norm. We’re not subject to Article III standing requirements, and the Hawaii Supreme Court’s state standing doctrine can best be summarized as “come on in the water’s fine.”  There's little doubt that if this were a case brought in a Hawaii trial court, that Sierra Club adequately alleged judicial standing. Anyone questioning that conclusion need only recall the Superferry case in which the Hawaii Supreme Court held that Sierra Club had standing to raise an environmental challenge to the now-defunct inter-island ferry because the ferry threatened the organization with four types of injury: (1) endangered species could be adversely impacted by a high-speed ferry; (2) the Superferry could increase the introduction of alien species; (3) surfers, divers, and canoe paddlers who used a state operated harbor could conceivably suffer adverse impacts; and (4) the threat of increased traffic on the road next to the harbor entrance. Again, that's a pretty vague butterfly-effect logic to gain standing. But for better or worse, that's the current state of Hawaii's standing law. 

However, the Maui Electric case was not an original jurisdiction action, it was an administrative proceeding in the Commission under the PUC's admin rules, governed by a different standard, one based in the Hawaii Administrative Procedures Act. Under the APA, an outsider may intervene in a "contested case" (an quasi-judicial adjudicative administrative process) when an agency rule or a statute gives the party a seat at the table, or when intervention is required by law because the agency is adjudicating that party's rights (in this case, the law was the Hawaii Constitution's due process clause).

And here, the Sierra Club alleged both that PUC statutes and the Hawaii Constitution's procedural due process of law protections gave it the right to intervene in the agency proceedings: 

Sierra Club argued that its members were concerned that the Puunene Plant relied too heavily on coal in order to meet its power obligations under the existing agreement and also that its members were concerned "about the public health and visibility impacts of burning coal."

Neither the PUC nor the court of appeals bought the Sierra Club's theory. The Commission denied intervention and decided Maui Electric's application without the Club's presence. The Club appealed to the Intermediate Court of Appeals which agreed with Maui Electric and dismissed the appeal for lack of jurisdiction. It concluded that because Sierra Club was not "aggrieved" by the decision by the PUC (because it correctly excluded the Club from the admin case), the appellate court did not have jurisdiction.

So up to the Hawaii Supreme Court they went, on the same two theories: the Club should have been allowed to intervene, either because the PUC's governing statutes gave it the right to do so, or because due process required it because the Club's property was at stake in the PUC proceeding. After rejecting a claim of mootness, three of our five justices got to the constitutional question: does the Hawaii Constitution recognize Sierra Club's environmental concerns as a property interest entitling it to procedural due process?

The majority based its conclusion on Article XI, section 9 of the Hawaii Constitution (a provision added by the 1978 constitutional convention):

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

That, the majority held, created a legitimate claim of entitlement to a clean and healthful environment, and thus it is a property right. It "is a substantive right guaranteed to each person." The majority noted that the court had earlier held that Native Hawaiian rights -- a right also found in the Hawaii Constitution -- are "property" rights, and that environmental concerns are no different. As a self-executing right, it is a legitimate entitlement --

We therefore conclude that HRS Chapter 269 is a law relating to environmental quality that defines the right to a clean and healthful environment under article XI, section 9 by providing that express consideration be given to reduction of greenhouse gas emissions in the decision-making of the Commission. Accordingly, we hold that Sierra Club has established a legitimate claim of entitlement to a clean and healthful environment under article XI, section 9 and HRS Chapter 269.

After reaching the conclusion that Sierra Club owns property in a clean and healthful environment, it was all over but the shouting and the majority held by applying the Professor Roth test, that the PUC had a duty to provide a hearing before it deprived the Club of its property:

The risks of an erroneous deprivation are high in this case absent the protections provided by a contested case hearing, particularly in light of the potential long-term impact on the air quality in the area, the denial of Sierra Club’s motion for intervention or participation in the proceeding, and the absence of other proceedings in which Sierra Club could have a meaningful opportunity to be heard concerning HC&S’s performance of the Agreement.

Finally, in a footnote, the majority made it clear that the result is immune from future legislative tinkering. This is a ruling based on the Hawaii Constitution, and thus no mere legislature can mess with it too much. 

Two justices disagreed, arguing this was a stretch, and one of those Pandora’s Box situations:

Respectfully, the Majority’s expansive interpretation of what constitutes a protected property interest in these circumstances may have unintended consequences in other contexts, such as statutes where the legislature has mandated consideration of specific factors by executive agencies when implementing a statute.

The dissent concluded the majority's result was unnecessary, because it was more of a policy choice than a judicial decision, and ultimately, if denied administrative intervention in the PUC, Sierra Club could deploy the loose standing rules which we mentioned earlier in this post, and institute an original jurisdiction action.

So is this property, New Property, or what we might call New New Property? 

The biggest question I have about the majority's conclusion is this: if the most fundamental aspect of owning "property" is the right to exclude others from the res, how in the world do members of the public have the right to exclude other members of the public from a clean and healthful environment? 

As the U.S. Supreme Court held in the aforementioned Kaiser Aetna, and Nollan "[w]e have repeatedly held that, as to property reserved by its owner for private use, 'the right to exclude [others is] 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'' (Or maybe Stevie Wonder said it better when he sang "this is mine, you can't take it.") 

Either way, the ability to keep others off of what you own -- and have the law back you up -- is one of the defining sticks in the bundle of rights which we call property.

Thus, I don’t think the court adequately grappled with the real foundational question built into the arguments -- should these types of environmental concerns even be shoehorned into the concept of "property" as that term has been used for thousands of years? Doesn't "property" as used in the Hawaii Constitution's due process clause mean private property? After all, as far as we can tell, every other time this court has dealt with property in Hawaii's due process clause, it has either expressly defined, or implicitly assumed, that the property interest at stake was private property, and not a right that looks more like something "owned" collectively by everyone. Essentially what the majority accomplished was a subtle redefinition of property from a private right to a public resource. 

So what’s on the horizon? I’m thinking the second shoe to drop is going to be "public trust" rights. As Professor Callies has written on the Hawaii form of the public trust which goes well beyond the Roman and English concepts, if the notion of public property is extended to the public trust, there’s a danger that this background principle could well eclipse – or indeed swallow up completely – the notion of private property. 

And our court is just one vote shy of concluding that Native Hawaiian rights – a form of cultural property – qualify as constitutional property.  Australia’s High Court has recently concluded that the property rights first recognized in the Mabo v. Queensland decision lead to a requirement for compensation when those rights were expropriated. Real money, even if it is Australian dollars. And since we’re here in the south what does the recognition of cultural property mean for things like those troublesome Confederate monuments that sit there on courthouse lawns (and across the street from certain law schools)? Is there a cultural property right for them to remain, or to be paid compensation to leave? 

As if responding to the Hawaii Supreme Court, the following year, the DC Circuit – applying Pennsylvania’s similar constitutional provision – came to the opposite conclusion. 

The court held that the Pennsylvania Constitution's Environmental Rights Amendment's guarantee of "clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic [sic] values of the environment" was not a liberty or property interest triggering the Fourteenth Amendment's due process protections. 

The case was a challenge by Riverkeeper to the Federal Energy Regulatory Commission's enabling statute, which requires FERC to recover its costs from the industries it regulates. Riverkeeper asserted this makes it more likely that FERC will approve pipelines. 

The court first concluded that Riverkeeper had standing. And it quickly dismissed its claim to possess a liberty interest because the ERA's rights are not "essential to the orderly pursuit of happiness by free men," and "the right to a healthy environment can[not] itself fairly be described as a 'liberty' interest." 

The court subjected Riverkeeper's "property" claim to a bit more analysis. State law defines property, and Pennsylvania's ERA "guarantees" certain things, and even calls them "rights." The court concluded, however, that the ERA's rights are "vague and indeterminate." Slip op. at 8. And the rights it recognizes do not have "some acertainable monetary value."  Most importantly, the question is whether the rights look like "any traditional conception of property."

The court held that because the ERA recognizes the rights as belonging to "the people," it failed this latter test:

Most importantly, the Environmental Rights Amendment creates no right to exclude—or anything like it. To the contrary, its first sentence vests the single “right” at issue collectively in “[t]he people,” its second sentence confirms that “Pennsylvania’s public natural resources are the common property of all the people,” and its third sentence requires the Commonwealth to conserve and maintain environmental resources “for the benefit of all the people.” Moreover, although the Supreme Court of Pennsylvania has held that the Amendment is judicially enforceable by private individuals, it has also confirmed that the right the Amendment creates is shared equally by all Pennsylvanians.

In other words, no Pennsylvanian may exclude any other from the right to clean air, pure water, and a preserved environment. So, the Amendment protects not private property rights, but public goods. In that respect, it is like “the right that we all possess to use the public lands”—which for due-process purposes “is not the ‘property’ right of anyone.”

The court concluded that "[t]he amendment is unlike traditional or even new property in yet other respects. For one thing, the right to a preserved environment cannot be bought or sold—and thus has no 'ascertainable monetary value,' as the Supreme Court’s 'property-as-entitlement cases have implicitly required.'"

So which is it, and maybe more critically what defines “property?” State law, notions of natural law or fundamental rights?

On that, I’d like to touch on one more recent decision, which will naturally lead us into a discussion of one of my favorite metaphysical law cases, Stop the Beach Renourishment (yes, we’re going to dive into judicial takings in a moment).

This is a case from the Ninth Circuit. The plaintiffs filed a class action alleging that state officials failed "to return interest that was allegedly skimmed from their state-managed retirement accounts." The District Court denied class action status and granted the State summary judgment, concluding the case was "potentially unripe" because the State had not finished the process of administrative rulemaking, which might, in the court's view, address the plaintiffs' claims for interest.

The Ninth Circuit – somewhat surprisingly, given its reputation --  reversed. The State argued that because the Washington Court of Appeals held that the statute at issue didn't require the payment of interest, there was no "property" that was taken when the state officials kept the interest. If it ain't property under state law, the state argued, it ain't "property." 

Not quite, held the Ninth Circuit. Interest on principal is one of those "core" and "traditional" property rights that a state simply cannot disavow:  

There we observed that “constitutionally protected property rights can—and often do—exist despite statutes . . . that appear to deny their existence.” Citing the Supreme Court’s opinion in Phillips, we noted that “a State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law.” We then held that there is “a ‘core’ notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny.” This “core” is “defined by reference to traditional ‘background principles’ of property law.” In that case, we concluded that interest income earned on an interest-bearing account falls within this class of fundamental property rights. 

In short, while state law usually defines property, there are certain sticks that transcend a state's ability to redefine them out of existence. 

Before we move to Justice Bell and Stop the Beach Renourishment, let me say this. First, thank you to Lynda Butler for again asking me to be here. I’ve said before that being in this room is like being at the Super Bowl for property law. This is Yankee Stadium in October, the Champs Elysees or Wimbledon in July (although with the stellar talent in the room, I kind of feel like the poor sap up matched up with Venus Williams). Second, hearty congratulations to Professor Eagle. His regulatory takings treatise is one of those rare ones that is on what I call my “back” bookshelf. The books within reach when you turn around at your desk. A well-deserved recognition for your wonderful work and scholarship. 

**** 

Anthony Palazzolo Drives His Property

Check this out. What at first appears to be something along the lines of the grainy Zapruder film (this particular piece was recorded on video, not film, and certainly well before the days of high-res camera phones that we now take for granted) is an important piece of takings history.

It is (the late) Anthony Palazzolo driving his famous "wetlands" property, recorded after the U.S. Supreme Court issued its opinion in his favor in Palazzolo v. Rhode Island, 533 U.S. 606 (2001).

Dwight Merriam, who graciously provided the raw footage, became Tony Palazzolo's friend after interviewing him for an article Dwight was writing on the Supreme Court decision, and they frequently met, dined together, and conversed as Palazzolo's matter continued on remand. Dwight recorded this video from the back seat of Palazzolo's car. In the front is John Boehnert of Providence, another longtime friend of Dwight's and a preeminent Rhode Island land use and coastal law lawyer, author of the ABA book "Zoning the Oceans."

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)

Friday Round-Up: California Inverse Condemnation, Lawprof Epstein Litigates Public Trust, Property In Ecology, And More

Here's what we're reading this Friday:

• Plaintiffs Cannot Bring Inverse Condemnation Claims Before a Public Agency Makes a Final Determination on Allowable Development - California Land Use & Development Law Report
• One reason for the high cost of housing in California may surprise you — overregulation - Los Angeles Times (Barista's note: is anyone surprised at all by this?) 
• Law Prof Richard Epstein to Lead Challenge of Obama Center in Jackson Park - Chicago Maroon
• Property in Ecology - PERC
• Black People’s Land Was Stolen - New York Times Opinion
• Injunctions Give Teeth to Property Rights - Human Events
• In a Turnabout, SCOTUS Now Says Federal Takings Claims are Ripe When the Government Fails to Compensate Property Owners - Sarah Beachy (Axley) 
• Update on the Preakness Takings Case - Ilya Somin (Volokh Conspiracy)
• It would be cheaper to buy coastal homes than to keep fighting nature, new report says - Raleigh News & Observer
• A Quiet Revolution In Property Rights - Richard Epstein (Defining Ideas)

Check 'em out. 

Thursday Round Up: Hawaii Water Law, "New" Property, The Edge Denied!

Here's what we're reading today:

• New Ruling In Maui Water Case Still Doesn’t Resolve Old Dispute (Honolulu Civil Beat) - about the Hawaii Intermediate Court of Appeals' recent unpublished memorandum opinion in a long-ongoing water law fight on Maui. The long and the short of it is the court held that whether a short-term license from the State to use water (month-to-month, max one-year as the statute requires) is "temporary" or not (these licenses have been renewed for 18 years to allow the administrative process to be completed) is a factual question that can be resolved by summary judgment. Court held no. In our view, these things operate much like preliminary injunctions, which although they are temporary in nature, can stretch out for quite a long time while the wheels of justice grind. Cert application to the Hawaii SCT coming, for sure. Any guesses on which way this will come out: Native Hawaiian plaintiffs, water law, 18 years is "temporary?" 
• Looking Back: Charles Reich and His Era (Walter Olson at Cato) - noting the death of Professor Charles Reich, author of the influential Yale Law Review article on "new property." A topic we've hit up from time to time. 
• 'He's finished!' U2 guitarist The Edge's dreams of building $100million family compound on an untouched Malibu mountainside are shattered after he loses a 14-YEAR legal battle (Daily Mail) - In what may be the last chapter of a case we've been following (see California Coastal Development in a Nutshell: Hire Jesus - Moses, Actually - To Sell Your Luxe Home Plans, and Become One With the Mountain), the California Supreme Court denied review of the case, meaning that even a woke rock star can't develop in California.

The Ocean May Be Subject To The Public Trust, But Private Owners Own The Seaweed

We recommend you pick up the opinion of Maine's Supreme Judicial Court in Ross v. Acadian Seaplants, Ltd., No. Was-17-142 (Mar. 28, 2019), because it deals with property rights in an area subject to the public trust. We think the court did a pretty good job of setting out the competing claims and the background of the oft-misunderstood public trust doctrine. 

The issue was whether the public (in this instance, Acadian Seaplants) has the right under the jus publicum to harvest living rockweed, a seaweed which anchors itself to "the rocky ledges that accent [Maine]'s coastline." Slip op. at 1.

Specifically, we are asked to determine whether rockweed is private property that belongs to the adjoining upland landowner who owns the intertidal soil in fee simple, or property that is held in trust by the State through the jus publicum for the public to harvest.

Id.

The court concluded that "rockweed in the intertidal zone belongs to the upland property owner and therefore is not public property, is not held in trust by the State for public use, and cannot be harvested by members of the public as a matter of right." Slip op. at 2. The court summarized the public trust law this way:

In short, the English common law tradition vested both “title” to and “dominion” over the intertidal zone in the crown. Shively v. Bowlby, 152 U.S. 1, 11 (1894). Title—the jus privatum—belonged to the crown “as the sovereign” but was held subject to the public’s rights of “navigation,” “commerce,” and “fishing”—the jus publicum—which the crown held in trust for the public. Id. After the American colonies gained independence, the ownership of intertidal land devolved to the particular state where the intertidal area was located. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); Shively, 152 U.S. at 14-15; State v. Leavitt, 105 Me. 76, 78-79, 72 A. 875 (1909).

Slip op. at 7.

Private property rights are recognized in certain areas of the shoreland. In the intertidal zone -- as contrasted to land below the mean high water mark (which is public), and the dry sand beach (which is private) -- the land is privately owned, but not absolutely. It is "subject to certain public rights." Id. at 9.

Read the opinion (pages 12-18) for the reasons why the court concluded -- due to the nature of rockweed, and the "specialized equipment and skiffs required to harvest in in this area -- the right to harvest it belongs to the private upland owners. Overall, the rockweed harvesting did not really look like the usual activities (fishing, navigation) that are done in the water. The court balanced the competing interests, concluding that "Acadian’s activity is qualitatively similar to other uses of the intertidal zone that we have held are outside of the public trust doctrine." Slip op. at 21. 

This opinion is a good read because it shows that mere invocations of the public trust should not be enough to completely discount private property rights. The public trust doctrine, after all, is supposed to be about protecting activities undertaken, and not ownership qua ownership. Check it out.  

Ross v. Acadian Seaplants, Ltd., No. Was-17-142 (Maine Mar. 28, 2019)

Webinar Today - Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters

Later today (starting at 1pm ET), our colleague Edward Thomas is chairing an ABA-produced webinar on "Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters: Using the Law to Solve a Serious Problem."

As in other areas of life, when natural disasters strike, it is often the owners of modest means who are the hardest hit. Floods, wildfires, sea level rise, you name it. And Ed has been there: he's a former FEMA guy, and currently the President of the Natural Hazard Mitigation Association who understands that property rights have to be respected in these situations. 

Find out more information about the program and register here. 

New Amicus Brief In SCOTUS Hawaii Case: Takings Is About Denial Of *Use* Not Whether Property Has Value

Would you pay, say $10 for an undeveloped Maui beachfront parcel that is zoned for hotel and residential purposes, but currently is not developable because the County in the past wanted to condemn the land and turn it into a public park (but then ran out of money)?

In furtherance of its acquisition plan, the County changed the parcel's Community Plan (known as a "general plan" in most jurisdictions) designation to "park." But it never amended the Hotel zoning, which allows lesser intensive uses such as single-family homes. But then the County didn't have enough money -- beachfront property, it turns out, was (and is) a lot more spendy than the government appraisers thought -- so it never actually acquired the land. But having downplanned the parcel in order to take it, it never bothered uplanning it when it couldn't: the County never reverted the CP designation to its former state, but instead left the "park" designation in place.

Which resulted in a land bank, because under Hawaii law an application for use of the land and development permits (or even things like confirmation that development doesn't need any discretionary permits) cannot even be processed by the County planning agency unless both the zoning and the CP are "consistent." And here, Hotel zoning is not "consistent" with the CP park designation. End result: no development unless and until the County amends the CP park designation, which it is not inclined to do. Why should it, after all? No development or use allowed is just about as good as having a park there, with the added benefit that they don't have to bother paying for it. 

So going back to our initial question: would you pay something to step into the shoes of the property owner in this story? It could be a good deal: maybe, just maybe, some time in the indeterminate future, the County just might change those use prohibitions, and let whomever owns the property then actually do something with it, true? Why not take a chance? 

We'd bet that a lot of people might take that bet and pay $10 to roll the dice. And might pay even more. No present use, but hey, maybe some value. In the Hawaii Supreme Court's words, the owners could "hold it for a period of time, and as it increases in value and depending on [their] strategy and financial objectives, sell it for profit."  And that, the court concluded, was a use. Because someone might pay for it. Thus, the court held there was no regulatory taking because the owner retained what the court called "investment use."

Welcome to newspeak, takings edition. 

The property owner, as we mentioned in this post, has challenged the Hawaii Supreme Court's ruling, by asking the U.S. Supreme Court to hear the case.

Last week, a coalition of those who believe that in Lucas and other decisions, the Court held that takings doctrine is based on deprivation of use -- and not simply value (after all, what doesn't have some value or "investment use?") -- filed an amici brief which argues:

This case raises two important issues that have divided the lower federal courts and state courts of last resort in the quarter century since Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The petition first asks whether any residual value in a parcel of property that is rendered unbuildable by regulation will defeat a categorical total takings claim. If so, the petition asks to what extent the courts should consider any residual value when evaluating a total takings claim. Review by this Court is necessary to provide much needed stability and uniformity in takings law. As the law stands right now, a property owner’s right to obtain compensation for a categorical taking varies depending upon seemingly irrelevant factors, such as the property’s location. Constitutional rights should not be subject to such uncertainty and uneven application.

Br. at 5.

Stay tuned for further. 

Brief Amicus Curiae of Pacific Legal Foundation, Cato Institute, Owners' Counsel, et al., Leone v. County o..

ALI-CLE 2019 Eminent Domain And Land Valuation Litigation Conference, Palm Springs Agenda - Register Now!

You've known for a while that Palm Springs, California, specifically the Renaissance Palm Springs Hotel (a resort facility, but right in town, so you will have many options for "off campus" activities like art museums, the aerial tram, golf, and whatever suits your fancy, and close-in to the Palm Springs Airport), is the venue for our 2019 ALI-CLE Eminent Domain and Land Valuation Litigation, January 24 through 26, 2019.

Of course, you also knew that the programming would be the usual spread of topical and cutting-edge topics, presented by some of the nation's experts. But we didn't give you the details. So here are some of the programs we're having: 

• Keynote Address: "Property Rights: Foundation for a Free Society" - Taylor Revley, most recently the past President of the College of William and Mary, and also former law school Dean (as well as a long-time leader of one of Virginia's most prominent private firms) will deliver the keynote. We're very lucky to have secured his participation, and his talk will focus on both the practical and the theoretical.
• Relocation: we're doing two separate panels on relocation issues. This is a growing area that many of us unfortunately overlook. No longer -- here's your chance to find out the latest: "How to Work Through a Complicated Relocation, From A to Z: Making it Happen" and "Mass Relocation and Navigating Cultural Conflicts: Displacement of Immigrant and Refugee Communities."
• "Knick of Time: A First Look at the Supreme Court's Revisit of Ripeness: Are Takings State or Federal?" We look at the arguments and the Court's opinion in the case that may upend Williamson County ripeness in regulatory and inverse cases against local governments (which may be issued by January).
• "Earth, Wind, (Water) and Fire: A Report From the Front Lines of the Flood and Wildfire Inverse Cases." Flood, wildfire, and other inverse cases present big issues, nationwide. 
• Loss of Access and Damages: How to Prove Just Compensation"
• "Palazzolo, Preexisting Regulations, and Reasonable Likelihood of a Regulatory Takings Judgment as Elements of Just Compensation." Hear directly from the source how you can present the case when preexisting regulations are claimed to depress the market value of land. 
• "Eminent Domain and Property Rights in the Popular Media: How to Respond to Misconceptions and Urban Legends."  Eminent domain and takings stories in the media and social platforms are rife with misinformation. How do you correct the record? 
• Two programs on the hot pipeline issue: the first focuses on challenges to the power to take and environmental and regulatory challenges, while the second is about "Compensation Pitfalls: How to Avoid Problems."
• "Run for the Border: Fence and Wall Condemnations." The idea of building a barrier along the southern border has burst on the headlines - what do you as a takings lawyer need to know?
• "Fight the Power: The Impact and the Valuation of Power Lines in Partial Takings" - takings for energy corridors continue to dominate; find out how this might affect value from lawyers, engineers, and scholars. 

And more (including an Ethics session for those of you who need the MCLE credits).  And the usual 101 track, for those new to the practice, or for experienced lawyers looking for a refresher.

As planning chairs, we've made a special effort to include on the faculty speakers from different backgrounds: property owner lawyers, condemning agency lawyers, right of way professionals, academics, engineers, relocation experts, and appraisers. We think you will like the line up.  

The full agenda, along with the speakers, will be published shortly by ALI-CLE. We'll announce it here, when ready. 

But don't wait, register now here. Early registration and group discounts available. 

Also: we have settled on the 2020 venue, and will make the announcement in Palm Springs. You asked for this venue, and we're bringing it to you!

Earlier this year, we had a fantastic conference in Charleston. Sold out. Attendees reported having a great time, and learning a lot. Our aim is to build and grow the Conference, and you joining us in Palm Springs is another step in that direction.

Ping me if you have questions. 

From The "Be Careful What You Wish For" Department: California May Take Beach Easement

According to this story ("California moves closer to taking public pathway from billionaire Vinod Khosla") in the Santa Cruz Sentinel, the State of California is considering exercising eminent domain to take an easement for public access over his San Mateo County property to access Martins Beach. 

This is the case that resulted in a cert petition after the California Court of Appeal ordered the owner to open up the route to the beach across private property which the previous owner had kept available to the public, but which Khosla closed. As we noted in this post ("Our Unfiled* Amicus In The California Beach Access Case"), the case involves an effort to open back up an access route to the beach across what is now Khosla's land, simply because his predecessor allowed access (no good deed goes unpunished). After Khosla purchased and closed access, the Surfrider Foundation went to court and obtained an order compelling him to allow public access. 

After the California Supreme Court denied review, the owner sought U.S. Supreme Court review, asserting that the California Court of Appeal's decision to open the parcel to the public until such time the owner obtains a permit to "allow" him to close it "is a per se physical taking" because it takes his right to exclude the public from his land. 

The article sets out the story, along with the usual not-quite-correct facts that often color the narrative in beach cases (i.e., "[a] state agency is moving closer toward forcing Silicon Valley billionaire Vinod Khosla to permanently open Martins Beach in San Mateo County to the public..."). Not quite: the beach has always been public, it's the access across his land that is at issue. Anyhow, please do read the entire piece.

Two bits stuck out at us:  

"The State Lands Commission appraised a public right-of-way over the 6.4 acres of Martins Beach Road at $360,000 in 2016. But Khosla said he would only sell it for $30 million, nearly as much as he paid for the entire property." Just comp and damages of $360k seems on the low side to us, and got us to wondering whether the State has taken a realistic look at how much this might cost the public were the property condemned. Not only would the State have to pay the cost of the land acquired, but also the damages to the remainder. And those could be huge. After all what's the value of an isolated beachfront property vs. a beachfront property with an adjacent public pathway, one that is apparently quite popular? The delta seems like a lot more than $360k, or some portion thereof.

And that's related to our second point: an exercise of eminent domain won't make Khosla's arguments about his right to exclude go away: "Sources familiar with the case have said that the commission may be wary of using eminent domain because, if Khosla loses his ongoing legal battles, it would be paying for something the public might otherwise get for free, and setting a precedent with other wealthy coastal landowners. Others, however, believe that taking the access route now might render Khosla’s legal challenges moot because he would no longer own the rights to the road." In our view, that would simply shift Khosla's right to exclude argument from his cert petition to the valuation trial. He'd still argue, we'd bet, that he has the right to exclude the public from the accessway, and therefore the compensation award must take that into account when assessing severance damages to the remainder. 

We've been through a few similar cases, involving the taking of portions of littoral property for public access to a public beach. And in none of these cases has the condemning agency ever realistically assessed the severance damages wrought on the remainder, and the loss of value caused by having a public pedestrian highway plopped next to your property. 

Tuesday Reading List - Flood Takings, Cuba Property, Beach Access, And ... Space Aliens

Here's what we are reading (or listening to) this Tuesday:

• Richard Epstein's podcast on "Is it a Taking When the Government Floods Your House?" (Federalist Society)
• Teaching takings: Professor Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings (lawprof blawg)
• "Communist-run Cuba to recognize private property in new constitution" (Reuters)
• "What if You Owned a Beach but Weren't Allowed to Get to It?" asks the New York Times. The answer, it seems, is that you deserve it (a concept with which we have no beef), and therefore should get it for free. Call us crazy, but how about condemning and paying for an easement, including severance to the remainder...maybe that would work? 
• "Careful Judge - That Condemnation is Constitutionally Protected" - our New York colleague Mike Rikon reminds us of a concept that is often overlooked: "A condemnation proceeding is not like private litigation. A condemnation claim is the enforcement of a constitutional mandate that just compensation be paid."  
• Colleague Sheldon Gilbert has this tweetstorm on one of the more ridiculous applications of the "rational basis" test, one that came our way via a law review article from Professor Kanner. In short, space aliens might be responsible for legislation, and that's good enough under the RBT. Includes a link to the Ninth Circuit oral arguments. 

Links And Materials From Today's Transportation Research Board Session

Here are the cases and other items I either spoke about or mentioned at today's Transportation Research Board's 57th Annual Workshop on Transportation Law in Cambridge, Massachusetts:

• The Colorado public use cases: public use vs. public purpose: Lafayette and Carousel Farms
• On the Supreme Court docket: Violet Dock Port (SCOTUS, Louisiana)
• The Louisiana Supreme Court's ruling on valuation of a unique property (replacement cost vs fair market value)
• "New" property vs. "old" property - environmental rights as "property" (CADC, Hawaii)
• Tribal immunity from eminent domain (CA10, cert denied)
• Public can use the electricity produced, not the land taken (but that's good       enough) (SD)
• Utility takings: Claremont (Cal), Missoula (Montana)
• Post-Kelo statutes: how effective? (Georgia)
• The relationship between condemnation and inverse: Stimson (NC)
• Inverse vs. tort, part II: MR/GO and Katrina flooding (CAFED)
• Maryland: government inaction could result in inverse liability (Maryland)
• Objecting to eminent domain is a political opinion (CA9)
• Highest and Best Use could include "conceptual plans" (Florida)
• Causing a nonprofit to lose even more money is considered compensable "goodwill" under California law (California)
• Billboard valuation - loss of income isn't compensable, but there is more that one way to still get it (NC)
• Larger parcel, quick take deposit (Hawaii)
• Here's the amicus brief we filed in the above case, which cites Baetjer v. United States, 143 F.2d 391, 395 (1st Cir.) (condemnation on island of Vieques caused severance damages to parcels on Puerto Rico), cert. denied, 323 U.S. 772 (1944).
• Federal Relocation Act, inverse condemnation, and attorney fees  (West Virginia)
• The larger parcel in inverse cases (aka the "denominator" issue) (SCOTUS)
• Bye bye, Williamson County? (SCOTUS)
• Palazzolo applied (NY)
• Judicial Takings Redux - Martin's Beach (SCOTUS)

Thanks to my fellow speakers -- Bernadette Duran-Brown and Laura Curry -- and to the organizers of the Conference for asking me to be here. 

Land Use Institute - Detroit

We're in Detroit the rest of the week at the Mercy Law School for the venerable Land Use Institute, now in its 32nd iteration.

Planning Chair Frank Schnidman has assembled a great faculty including out Detroit colleague Alan Ackerman (above, talking about takings liability for flooding), and we'll be spending the time talking inverse condemnation, public trust, planning law, homelessness, autonomous vehicles, affordable housing, RULIPA, and similar topics. We'll be presenting on "Eminent Domain, Vested Rights, and Regulatory Takings," "Client Representation: Developer, Government, and Citizens Groups," and "Federal Laws Affecting Local Land Use Decision Making." 

If you are here with us in Detroit, stop by and say hello. If you aren't here, shame on you! This is one of the best and most affordable tuition deals in CLE.

But all kidding aside, if you are not in Detroit now, be sure to calendar these two dates:

• 2018 Land Use Institute: April 11-12, 2019, Baltimore, MD (Royal Sonesta Harbor Court Hotel)
• 2020 Land Use Institute: April 23-24, 2020, Tampa, FL (Le Meridien Tampa)

Reserve the dates!

Our Unfiled* Amicus Brief In The California Beach Access Case

We're not going to be filing an amicus brief in support of the petition for cert in the case involving Martin's Beach on the Northern California coast. Masters of the Universe like Paul Clement and his team hardly need help from the kids in the back row.*

The case has been getting a lot of press, first in Northern California where it is a bit of a cause célèbre, and now nationally, with pieces like this article from the Los Angeles Times ("With Supreme Court challenge, tech billionaire could dismantle beach access rights — and a landmark coastal law"). Besides, the poor signal-to-noise ratio in beach cases (as we've written before) often makes hoping for a rational result futile. But the way the LA Times article framed the case (uber rich guy is trying to blow up your beach access!) made us want to point out a couple of things that did not make their way into in the cert petition.

Before we do so, first recall that the issue in the case is "[w]hether a compulsory public-access easement of indefinite duration is a per se physical taking." But wait, you say, this case is Property Owner, Petitioner vs. Surfrider Foundation, Respondent. Surfrider, last we checked, was a private organization and does not have the power of eminent domain, so how can this case involve a taking?

Because the essence of the petition is that this is a judicial taking.

Now before your run fleeing into the wilderness at the mere mention of judicial takings -- after all, how much wood could a woodchuck chuck if a woodchuck could chuck wood? -- bear with us. We know the petition doesn't mention the phrase "judicial taking" directly, and only talks about it indirectly (see Pet. 26-27). We guess this is probably intentional, and a wise move. The last thing the Justices probably look forward to wading into is a doctrinally messy judicial takings case. (Is there any other kind?)

Well yes, this kind. As we pointed out in a post-Stop the Beach Renourishment article, the posture of this case is exactly the kind of case in which the question of "judicial takings" is squarely presented. The Martin's Beach case reminds us of our old favorite, PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), where the appeal (yes, appeal) to the U.S. Supreme Court asserted that the California Supreme Court's decision holding shopping centers were a traditional forum for speech was a taking of the PruneYard's right to exclude.

Same here, where the property owner is asserting that the California Court of Appeal's decision to open the parcel to the public until such time the owner obtains a permit to "allow" him to close it "is a per se physical taking." In short, we think this is a great case in which the Court could confirm what to us is the least controversial aspect of the "judicial takings" canon: that when a court makes a ruling that is alleged to have taken property, the owners' remedy includes invalidation of the judicial act, and not only an award of just compensation. The easiest judicial takings case, like every other takings case, is the one where physical invasion is the result. 

Now that we have that out of the way, here are the two items which were not featured in the petition.

First, under California law, an owner doesn't need the government's permission to exercise her right to exclude. If it were not clear enough from the common law, California statutes say so. California Civil Code § 654, presented for your consideration:

The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property.

Now, we wish we had remembered this, but fortunately a California colleague pointed it out. One of the reasons we like doing this is that we learn something new every day. 

Second, since California property owners have the right to exclude others from their land (something which the courts below recognized), does it make any difference that the prohibition on excluding the public might be "temporary" or "permanent?" The courts below found that that made all the difference, because only permanent takings are physical takings. (We thought this article rebutted that argument pretty well.)

Putting that aside for the moment, our view is that another of old favorites, Kaiser Aetna v. United States, 444 U.S. 164 (1979), is very relevant here. Recall that there, the Court was asked whether the landowners' acceptance of a Corps of Engineers' section 10 dredge and fill permit, and physically connecting a private navigable waterway to the ocean, was enough to say that the owner had somehow surrendered the right to exclude. The majority held that they weren't, and reconfirmed that the right to exclude is a fundamental part of what it means to "own" something. And government-sanctioned trespassing without first taking property isn't any less of a constitutional violation just because there may be a "pull date" on the trespass, or the chance that in the future, the right to exclude may be restored. And isn't there always the possibility that an invasion won't last forever, something we pointed out in this brief in Arkansas Game & Fish, where we wrote that this is a question of compensation, not the threshold question of whether there's been a taking:

Thus, the government cannot avoid liability for a taking when it floods property simply by asserting that it did not intend for the invasion to be permanent. Temporal metaphysics are less important than the actual permanent damage and deprivation of use inflicted by an invasion.

As long as the property is damaged for a length of time, that's good enough.

As an aside, the unusual situation in Kaiser Aetna repeated itself a few years later and resulted in a Ninth Circuit decision which affirmed the principle that the right to exclude is fundamental. See Boone v. United States, 944 F.2d 1489 (9th Cir. 1991), where the government argued that the public's right to navigate upon a waterway predated private ownership and lay "dormant" after the property became nonnavigable, and thus any interference with right to exclude was merely temporary. Same reasoning, same result as in Kaiser Aetna.   

Should the Supreme Court grant cert in the Martin's Beach case? You now know what our answer is. 

---------

*Any other reason for not filing a brief, you ask? No time, brothers and sisters, no time. Otherwise, we'd be there. 

32nd Annual Land Use Institute: Detroit, April 19-20, 2018

Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section's Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: "Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings," "Public-Private Partnerships," "Climate Change and Resilient Development," "Client Representation: Developer, Government and Citizen Groups," "Housing Supply and Affordability: Planning Alternatives and Legal Consequences," and "Community Benefits Agreements, Environmental Justice and Access to Housing." The Annual Richard Babcock Keynote Address will be by Wendie Kellington, "The Role of Planning and Law in Solving Homelessness." Complete agenda is posted here.

Other featured speakers: Dennis Archer, former Detroit Mayor (and Past President of the American Bar Association); Neisen Kasdin, former Mayor of the City of Miami Beach; Jared Fleischer, Quicken Loans; and Maurice D. Cox, Director, Planning & Development, City of Detroit. And, as always, a renown national faculty of land use law practitioners, scholars, jurists, and public officials. 

Come and join us in the reborn City of Detroit, where there's a lot to do and see.

New Cert Petition: Beach Access, Temporary And Permanent Takings, And Permits To Exercise The Right To Exclude

Here's the cert petition, filed today by SCOTUS superstar Paul Clement in a case we've been following out of Northern California.

Here are the Questions Presented:

This case involves a stretch of private property along the California coast known as Martins Beach. The California Coastal Commission and the County of San Mateo want Martins Beach to be open to the public, but they do not want to pay to purchase the property, or even for an easement. Instead, they have taken the position that the owner of the property cannot exclude the public unless it first obtains a permit deemed necessary for any change, including a decrease, in the “intensity” of the public’s use of or access to the ocean under the California Coastal Act. In their view, because the previous owner of Martins Beach chose to allow members of the public to access the property upon payment of a fee, the current owner must do so as well—and on the exact same terms, no less—unless and until it obtains a permit allowing it to do otherwise.

Respondent Surfrider Foundation took up their cause and convinced the state courts to accept that capacious interpretation of the Coastal Act and to enjoin petitioner from excluding the public from its private property unless and until it obtains a “coastal development permit” allowing it to do so. While the court below recognized that this injunction against exercising the right to exclude constitutes a textbook physical invasion of private property, it nonetheless concluded—in a decision that deepens an entrenched split among the lower courts—that it is not a compensable taking because the possibility of obtaining a permit renders the physical taking “temporary,” and only “permanent” physical takings qualify as per se takings. Thus, under the decision below, petitioner is entitled to zero compensation for a compelled public easement across its private property because of the possibility petitioner could one day obtain a permit allowing it to exercise the most foundational property right, i.e., the right to exclude.

The questions presented are:

1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking.

2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment.

More soon.

Related articles

How Do You Exclude Someone From A Clean And Healthful Environment? Hawaii Supreme Court Rules The Public Has A <em>Property</em> Right In The Environment

Eminent Domain Abuse, Coming To A Theater Near You

Hawaii Business Magazine Asks: "How Much Will Rail Cost Us In the End?" Our Answer: As Much As It Takes

Indiana: Equal Footing Doctrine Means Public Owns Up To The Ordinary High Water Mark

Update: thanks to Daniel Lehmann for keying us in to this case, now being reviewed by the Supreme Court, involving the foundational question of whether title to Equal Footing Doctrine submerged lands is a question of state or federal law. Scheduled for the Court's 2/16/2018 conference.

* * * *

In our experience, rationality often takes a second chair when delving into the question of who may own various parts of beaches. It's certainly true in our home jurisdiction, where any claims to private rights anywhere near a beach can be met with howls of protest, regardless of what the law might actually provide in any given circumstance. Trying to unwrap these cases can be an exercise in frustration, and if you don't understand the background and politics -- the "real story" -- you can't really say you understand a decision.

That is what we're wondering about the Indiana Supreme Court's long-awaited opinion in Gunderson v. Indiana, No. 46S03-17060PL-423 (Feb. 14, 2018), in which the court concluded that the public, and not the Gundersons, owned the area below Lake Michigan's ordinary mean high water mark. We have read the opinion, and the court frames the issue the same we see it: "What is the precise boundary at which the State’s ownership interest ends and private property interests begin?" Slip op. at 1. But what, if anything, in the real story here and what other forces are at play other than those we read in the opinion and briefs? We wish we knew.

The case is a property lawyer's delight, full of things like the Equal Footing Doctrine, the Northwest Ordinance, public trust, Shively v. Bowlby, 152 U.S. 1 (1894), and Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367 (1842). (If you don't need to look up any of these terms, congratulations - you are officially a property law geek.) We recommend you read the opinion yourself; it isn't that long (29 pages) you will be entertained for sure. 

Here's the short version: everyone actually agreed that the ordinary mean high water mark -- or, as the case cryptically shortens it "OHWM" -- is the boundary between public land and the Gunderson's private property. The big question was where was that line? The plat map of the owners' lots, which they can trace back to an 1837 federal land patent, say they own up to the "Lake Edge." In 2010, however, the Town of Long Beach adopted what the court refers to as an "administrative boundary" which set the public-private boundary landward of where the the Gundersons thought it was. The court framed the issue this way:  

The basic controversy here is whether the State holds exclusive title to the exposed shore of Lake Michigan up to the OHWM, or whether the Gundersons, as riparian property owners, hold title to the water’s edge, thus excluding public use of the beach. All parties agree that land below Lake Michigan’s OHWM is held in trust for public use. The legal dispute relates to the precise location of that OHWM: whereas the Gundersons argue that it lies wherever the water meets the land at any given moment, the State and Intervenors locate the boundary further landward to include the exposed shore.

Resolution of this case entails a two-part analysis: First, we must determine the boundary of the bed of Lake Michigan that originally passed to Indiana at statehood in 1816. Second, we must decide whether the State has since relinquished title to land within that boundary. The former question is a matter of federal law; the latter inquiry, a matter of state law. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 376-77 (1977) (“[D]etermination of the initial boundary between [the beds of navigable waters] acquired under the equal-footing doctrine, and riparian fast lands [is] a matter of federal law . . . [whereas] subsequent changes in the contour of the land, as well as subsequent transfers of the land, are governed by the state law.”).

Slip op. at 6-7 (footnote omitted). 

The court concluded that at statehood, the Equal Footing Doctrine gave the State title to submerged lands. The Gundersons argued this means just what their documents say: right up to the lake edge, where ever that is at the moment. The State, by contrast, argued this means the OHWM. The court held that the Northwest Ordinance did not shift the line or alter the State's title, and that the Gundersons' deed and other documents did not either, because although the federal government had the power in 1827 to convey Equal Footing submerged lands to private interests, such a conveyance must have been explicit, which it was not here. 

The heart of the opinion starts on page 13 of the slip opinion, where the court concludes that the public-private boundary is the OHWM, and not the water's edge. The court acknowledged that the U.S. Supreme Court cases on this issue are not 100% clear or consistent (some, for example, merely mention "submerged" land, or those "bounded by navigable waters"), but concluded that those terms really mean OHWM. The court relied on the Corvallis Sand & Gavel case, which noted that the states own riparian land "between the high and low water mark, as well as the bed of the river[.]" Slip op. at 14. 

After siding with the State that the public cannot give up its public trust ownership except in unusual circumstances, the court agreed with the property owners that the state agency's attempt to alter the public-private line established by the Equal Footing and related doctrines by defining where the OHWM is located was ineffective. These regulations defined OHWM is a more clear fashion, which the government asserted was better because they provided more certainty than the common law doctrines. Perhaps so, but the court concluded that a state agency cannot amend the law, only the legislature can. Besides, there's a natural symmetry to a legally-defined (but moving) boundary:

The common-law OHWM is a moveable boundary subject to the natural variability of the shoreline. Bureau of Land Mgmt., Manual of Surveying Instructions at 81 (“When by action of water the bed of the body of water changes, the OHWM changes, and the ownership of adjoining land progresses with it.”). Riparian boundary law relies on the adaptive doctrines of accretion and erosion to account for these shoreline dynamics. Under the accretion doctrine, the riparian landowner gains property as the OHWM shifts lakeward due to the gradual deposit of sand or other material. Bath v. Courts, 459 N.E.2d 72, 74 (Ind. Ct. App. 1984). The doctrine of erosion, by contrast, has the opposite effect: the riparian landowner loses property as the boundary shifts landward due to the gradual loss of shoreline. 93 C.J.S. Waters § 187 (2017). These doctrines operate to maintain the status quo of relative rights to the shores of navigable waters. While the physical boundary shifts (e.g., shelving or terrestrial vegetation) the legal relationships—private riparian ownership and public trust title—remain the same. In other words, while accretion or erosion may change the actual location of the OHWM, the legal boundary remains the OHWM.

Slip op. at 25 (footnotes omitted). What we refer to as the "bitter and sweet" approach to accretion and erosion. Thus, the court concluded the natural OHWM is the public-private boundary, not the the line in the rules promulgated by the agency.

Finally, the court rejected the argument that any public trust uses other than those previously recognized by common-law tradition would be a taking: fishing, commerce, and navigation. The court held that it would not be a taking for either the legislature or the courts to expand the scope of the public's use of public trust property, and since the legislature hasn't acted, the court would. Slip op. at 23 ("Absent a statutory framework of public trust rights in the shores of Lake Michigan, this Court retains its common law powers to articulate—and even expand—the scope of protected uses."). Thus, the public may "at minimum" walk on land below the OHWM without infringing on the littoral owner's property rights.  

But the court declined to expand it further, deferring to the Indiana Legislature on that one. 

The local paper covered the story: "Indiana Supreme Court rules Lake Michigan shoreline belongs to all Hoosiers." 

Will this be the last stop for this case, or will there be a cert petition? Stay tuned, as always. 

Gunderson v. Indiana, No. 46S03-17060PL-423 (Ind. Feb. 14, 2018)