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Hawaii: Permit Conditions Not Subject To Nollan/Dolan When There's No Taking Claim

A short one (for us takings types) from the Hawaii Supreme Court.

In In re Surface Water Use Permit Applications, No. SCOT-21-0000581 (June 20, 2024), the court considered a challenge to the State of Hawaii Commission on Water Resource Management's authority to impose conditions on a water permit. The applicant asserted that the nexus and proportionality requirements of Nollan and Dolan must have been complied with.

No, the court concluded, those standards only apply where there's a takings claim present. And there's no takings claims here:

WWC relies on Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), to argue that any conditions the Commission attaches to its SWUP for system losses must relate to those losses. WWC attempts to frame Nollan and Dolan as providing a “clear statement of the unconstitutional conditions doctrine,” but fails to specify which constitutional provisions the conditions violate and of which constitution. Nollan and Dolan specifically apply to takings claims. WWC is not asserting a taking. Thus, WWC’s reliance on them necessarily fails.

Of course, the Commission cannot condition SWUPs on anything it wishes; as WWC states, those conditions must relate to the Commission’s jurisdictional powers. That is the applicable limit on the Commission’s powers – not Nollan and Dolan. And as explained above, the conditions here are within the Commission’s broad jurisdictional powers to implement and administer all aspects of the Water Code.

Slip op. at 129-130 (footnotes omitted).

How can we call a 134-page opinion "short?" Well, the good stuff is only at the tail end, and only a couple of pages long, and was just one sidebar issue in a whole panoply of arguments.

What about the rest of it? No surprises there: like many Hawaii Supreme Court opinions on water rights and the public trust, it is is gargantuan, detailed, and the Commission fares no better in this case than it does in practically every other case it is involved in in this court (it loses).

Unless you fancy yourself a 808 water rights maven, you can skip all but the good stuff.

In re Surface Water Use Permit Applications, SCOT-21-0000581 (Haw. June 20, 2024)

Pay To Play? Cal SCT Asked If Challenger Must First Pay A Fee To Object To Zero Water Allocation As A Taking

This one takes a bit of sifting through, but if you do so, you will eventually savor the arguments. Try and follow this thread.

In 2014, pistachio growers with what seemed to be established rights to pump groundwater for irrigation of their trees and who never had to pay fees or were subject to other governmental regulation, were subject to the newly-adopted Sustainable Groundwater Management Act. This statute, designed to manage groundwater, empowers local groundwater agencies to create management plans and the typical things that such regulatory agencies do.

In the course of determining the "sustainable yield" of the groundwater basin that supplies the pistachio growers' water, the local agency purported to determine the rights of various users relative to each other. The agency concluded that "public pumpers" have entitlement to 100% of the native groundwater, the pistachio growers' preexisting water rights notwithstanding. If the pistachio farmers wanted to pump any groundwater, they'd have to pay a "replenishment fee" to be used to purchase nonnative water to import to the area. The fee? $8.5 million. The pistachio growers didn't pay that fee nor had they paid it since 2021, meaning that the cumulative fee is in the neighborhood of $25 million.

The agency acknowledged that turning off the native groundwater taps and making replacement water very expensive would likely result in the demise of large-scale agriculture in the area (including the pistachio farms). So perhaps not surprisingly, the next step was a lawsuit by the pistachio growers challenging the zero allocation of native groundwater as a taking, inter alia. Of special note, the pistachio growers did not challenge the replenishment fee itself (mark that one down for later use -- that fact becomes important).

The trial court dismissed the claim, and in this opinion the Court of Appeal affirmed.

The court held that in order to pursue these challenges, the pistachio growers must first pay the replenishment fee. The court relied on California's "pay first, litigate later" rule -- which requires that in order to challenge a tax or a fee, a plaintiff must first pay the challenged tax or fee.

But wait, you say, you said that the pistachio growers didn't challenge the replenishment fee, right? Yes, we did. But the court held that because the allegedly illegal allocation was made under the authority of the same ordinance that imposed the replenishment fee and that the allocation would indirectly impact the fee charged, the pistachio growers must pay the fee before they could challenge their zero allocation:

As for the physical takings claim (the eleventh cause of action), the [trial] court reasoned that Mojave had not alleged it was in fact physically prevented from extracting water, and thus had not stated a claim.

We agree with respondent court’s analysis. If Mojave had paid the Replenishment Fee in compliance with the “pay first” rule, it could perhaps state a takings cause of action on the theory that the Replenishment Fee makes Mojave’s agricultural operations economically unviable because the fees for extracting groundwater are so high. Perhaps because Mojave has not paid the fee, however, it omitted any reference to the Replenishment Fee from the TAC’s takings claims, instead relying on the other Implementing Actions.

As respondent court correctly concluded, this attempt to escape the previous demurrer ruling fails because the only Implementing Action with an economic effect on Mojave is the Replenishment Fee. Since none of the other Implementing Actions physically prevent Mojave from extracting groundwater or interfere economically with Mojave’s ability to extract groundwater, Mojave’s TAC fails to state a cause of action for a taking.

Slip op. at 35-36.

In other words, the pistachio growers have not suffered an injury unless they pay first. They can still pump groundwater, right?

The growers have now asked the California Supreme Court to take up the case. In their petition, they argue "[t]his Court's guidance is necessary to ensure that overlying water rights holders, otherwise entitled to recognition, priority and protection under the holding of this Court in City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1233, 1253 (“Barstow”), may challenge an administrative action that (1) allocates them zero groundwater; (2) establishes an extortionate fee designed to bar challenge; and (3) bankrupts their businesses as a condition of litigating their claims." Pet. at 8.

Here are the Issues Presented:

1. Under the 2014 Sustainable Groundwater Management Act (“SGMA”), may a groundwater sustainability agency (“GSA”) determine law and facts to conclude that an overlying landowners’ correlative water rights are “inferior” to others and allocate them no (zero) groundwater?

2. Does the “pay first, litigate later” rule, California Constitution, article XIII, section 32 (“Pay First Rule”) apply to SGMA fees (or extend to non-fee provisions separately included in the local agency fee ordinance)?

3. If so, does the Pay First Rule immunize local agencies from constitutional takings claims where an agency establishes a usurious fee designed to bar challenge?

Pet. at 7.

Now we wait to see if the court agrees to review the case.

Petition for Review, Mojave Pistachios, LLC v. Superior Court, No. S284252 (Cal. Mar. 19, 2024)

Can One Government Official Really Hold Up Necessary Water Uses? The Hawaii Public Water Trust In Action

According to the County, this is an "industrial" use,
incompatible with "agricultural" zoning

Note: sorry, this is one of those longer posts, but the topic is a serious one, so we felt it needed more than our usual cursory treatment.

How Can That Be?

We've been somewhat reluctant to post too much on the legal aspects of the Maui wildfires (other than to comment on the first lawsuit), just because it still seems "too soon." The focus should be on aiding the victims and helping those who want to rebuild to do so, and not on premature blamestorming (see also this), legal theories, and  the "opportunities" this disaster presents (see also this, this.and this).

But we did want to clear one thing up. There are a lot of stories (see here, here, and here, for example), about the State of Hawaii official -- the Deputy Director of the Commission on Water Resource Management and an employee of the State Department of Land and Natural Resources -- who allegedly refused for several hours to release water as requested to fill reservoirs, until first obtaining the approval of a taro farmer.

A lot of the reaction has been of the "how could this be?" variety. How can a government official refuse to release water needed for fire suppression? How is it that a private kalo (taro) farmer needed to be asked for approval? Can this be accurate?

Short story: yes.

This is exactly how Hawaii's water law is designed to work, and is the system functioning as intended. And please don't get us wrong -- we're not at all suggesting that working-as-designed has resulted in a system that actually, you know, works. No, we are being purely descriptive, not normative, and just laying out our experience about how Hawaii water law plays out day-to-day in all its intended glory.

Bottom line: the water law regime in Hawaii is designed so that a government official can hold up water uses -- even if that use is to fight fires.

No Private Rights

First, it is essential to understand that conflicts over water use are not a new thing, and have been ongoing for centuries. Second, you must realize that all water in Hawaii -- and by that we mean all water -- fresh, salt, surface, ground, runoff, freshet, riparian, stream, ocean, lake, you-name-it -- is owned by the public, and administered by every agency at every level of state and municipal government under a trust-beneficiary model.

This approach is unique to Hawaii. But how did it develop?

It wasn't always this way, and for more than a century, Hawaii's water law -- mostly developed though court cases -- followed its English and American counterparts with a few local modifications. The law recognized private rights to "own" and use water, subject to the rights of others.

But in the 1960's and 1970's, the activist Hawaii Supreme Court began altering the governing law, ultimately concluding that water resources are (and have always been) incapable of private ownership -- despite a century of Hawaii common law that seemed to hold otherwise. The court began developing the idea that water is a public resource and consequently is impressed with a "public trust."

In a clever bit of sleight-of-law, the court held that the "public trust' doctrine was adopted by the Kingdom courts in the 19th Century, and then "later decisions of this court confirmed the acceptance of the public trust doctrine in this jurisdiction." Kelly v. 1250 Oceanside Partners, 140 P.3d 985, 1002 (Haw. 2006). The problem with that conclusion is that the "public trust" doctrine referred to in the 19th Century Kingdom cases was the traditional public trust -- the one that has its roots in Roman and English law -- the public's right to use navigable waters for activities such as commerce, navigation, and fishing. It had nothing to do with ownership of the water, or water rights, or the government's authority to control and regulate uses. Instead, the newly created "public trust" doctrine the Hawaii Supreme Court was referring to was much broader, and applied to all water whether navigable or not, and all uses whether related to commerce or navigation.

National Property Scholar: You Keep Using the Term "Public Trust." I Do Not Think It Means What You Think It Means

As renown property and water rights scholar Thomas Merrill wrote:

The public trust doctrine burst forth in Hawaii, in a big time way, as part of a series of highly controversial decisions by the state supreme court involving water rights. The rights in question did not involve the public right of access to navigable waters for commerce and fishing -- the classic issue in Illinois Central and Oahu Railway. Instead, these decisions have involved the rights to consumptive uses of water for purposes like irrigation or public drinking water systems -- what the Hawaii courts call "water resources" law. The public trust doctrine has never been applied to water resources in this sense in Illinois or New York. Indeed, the only other state besides Hawaii that has extended the doctrine in this fashion is California. And even there, the famous Mono Lake decision involved the diversion of waters by the city of Los Angeles from tributaries of a navigable lake, so the diversion had an impact on navigation. In Hawaii, the connection to navigation has been cut altogether.

See Merrill, The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications, 38 U. Haw. L. Rev. 261, 276-277 (2016) (footnotes omitted). (For a much different view of this, see this story.)

In altering the longstanding rules, the Hawaii Supreme Court based its rulings on, among other things, a 1978 amendment to the Hawaii Constitution, which, according to the court, publicized all water resources:

The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.

Haw. Const. art. XI, § 7.

The long and the short of it is that all Hawaii water is incapable of private ownership. (So if anyone tells you that there are what you think of as "water rights" in Hawaii, they are in our opinion mistaken. Or at least the concept of a substantial private interest in water is markedly different in Hawaii than elsewhere.) In case you are wondering, yes, there have been challenges to this altered water regime as a taking, both legislative and judicial. But those cases mostly went nowhere, with the most significant challenge crashing and burning on the shoals of Williamson County's ripeness doctrine.

The Regulatory Regime

Next, after effectively publicizing private water rights, the Hawaii Supreme Court imposed a regulatory system -- again based on this new "public [water] trust" concept -- on how the State and its subsidiaries and agencies were to "control and regulate" water (as that term is used in article XI, noted above). The obligation to control and regulate water use extends to all uses of water, no matter how de minimis the use, or how necessary (such as fire suppression).

If you think we might be exaggerating about this, we offer an example (other than the Maui fire situation), from one of our own cases from when we were in private practice.

Setting the Stage for Lahaina

In Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, 324 P.3d 951 (Haw. 2014), "Kauai Springs" was a small, family owned business that purchased approximately 750 gallons per day of water emanating from a natural spring on the island of Kauai. For more than a century, thousands of gallons of water per day had naturally flowed out of the spring, where it was channeled into an above-ground pipeline to irrigate sugar fields several miles from the source. The water wasn't pumped out or down -- gravity did the work. When the sugar plantations went away in more recent times, a small portion of the water in the pipe was used by several nearby homes as drinking water, but otherwise, thousands of gallons of water per day emptied from the pipeline into a nearby stream bed where it eventually flowed into the ocean.

Sensing an opportunity, a Kauai family obtained a license from the owner of the spring to capture some of that water, ensure it was up to USDA water quality standards, and bottle it in those 5-gallon plastic bottles that go on top of a dispenser unit. The family would deliver these to homes and offices on the island.

The problems began when someone dropped dime and reported to the Kauai County Planning Department that Kauai Springs was making an "industrial" use of land zoned for agriculture. Sure enough, planning officials paid a visit and issued a notice of violation and a shut down order.

Kauai Springs sought after-the-fact permits allowing its use as either a special use, or as a conditional use. You land users understand that when an unpermitted use is kind of like a permitted use, and really won't have much of an impact on the land, then very often the owner may be allowed to make an otherwise unpermitted use. That was the case here, where Kauai Springs argued that putting water into 5 gallon bottles at its facility (see photo above) was not that much different than typical agricultural uses, and had no significant different impacts on the land or the surrounding properties.

But the County of Kauai denied the permits. Why? Not because the building (see above photo) or the low-impact activity of bottling water are incompatible with agricultural zoning. Rather, it was because Kauai Springs was bottling water, and it had not proven that using 750 gallons per day from the pipeline flowing thousands of gallons per day into the ocean would not significantly impact the water resources of the County of Kauai.

You read that right. Seven-hundred-and-fifty gallons per day represented .22% (that's 0.0022 for you who are mathematically-challenged like me) of the total daily output of the spring. So minuscule that when we tried to create a demonstrative exhibit to show how little this was "impacting" water resources, it was impossible because in order to get the X-axis (Kauai Springs' useage) large enough to be visible, the Y-axis (total volume) would not fit on any reasonably-sized poster board - it would have needed to be yards long. 

Additionally, the County said that until the State Public Utilities Commission and the State Commission on Water Resources had weighed in, it was premature for the County to grant a zoning permit that might affect the County's water resources. Never mind that both agencies did not have subject matter jurisdiction over this, and had told the County so.

An Already Long Story Shorter

By the time the case reached the Hawaii Supreme Court, the first big issue was whether under the Hawaii public water trust, county agencies like the Kauai County Planning Department and Planning Commission have an obligation to make searching inquiries into whether the grant of zoning permits might affect the County's water resources. After all, neither agency has any expertise in the area of water regulation. Their expertise, if any, is in land use, not water and hydrology. Surely the public trust cannot be read as requiring every state and local agency to make its own independent determination about water resources, and in the case of Kauai Springs, the County agencies could simply adopt the views of the State PUC and the State Commission on Water Resource Management that there was nothing here to worry about.

The second question was who has the burden of demonstrating that use of 750 gallons per day would or would not detrimentally impact the County's water resources. While that might seem like a common-sense determination in light of the overall amount (.22%), the court was asked whether the County could deny the zoning permits on the basis that Kauai Springs had not met its burden to show to the satisfaction of the County that 750 gpd would not have a serious impact on the County's overall water resources. (Remember, Kauai bills itself as one of the "wettest spots on Earth.")

Could the County rely on the precautionary principle writ large? Does Hawaii's public water trust really enshrine the principle of inaction in the face of any doubt?

The Precautionary Principle Reaches the Parody Stage

Bottom line: yes, it does.

The Hawaii Supreme Court held that every agency and official in Hawaii -- state and county -- has a duty under Hawaii's public water trust to protect water resources. It doesn't matter whether the agency has any type of interest or expertise in water regulation, or the decision it is being asked to make (remember that Kauai Springs was asking the County for zoning permits, not asking its permission to use the water).

The court rejected the extreme hypothetical we posed - does the public water trust require that the local DMV make an inquiry about whether issuing a commercial driver license to the driver of a water company truck? After all, issuing a CDL to someone who drives a truck to deliver water might affect the public's water resources. Aw, come on that is ridiculous you say? What business does the DMV have in regulation of water uses? Every business, the court held. The public water trust is a sacred obligation, and the court held that the Hawaii Constitution's language ("The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.") means that the State itself, every State agency, and every municipality and municipal agency has an obligation to "protect, control and regulate" water. Yes, even the DMV.

Moreover, to fulfill this duty, these officials and agencies cannot rely on the conclusions of other -- perhaps more appropriate and expert -- agencies and officials. Thus, the Kauai Planning Department and the Planning Commission could not consider their public trust duties fulfilled by noting that the State Commission on Water Resources and the state PUC had both disclaimed any interest in Kauai Springs. The County agencies have an obligation to make their own independent determinations.

Next, the court concluded that the public trust duty is fulfilled by these agencies and officials if they rely on the precautionary principle to place the burden on the user of water and do nothing if the user can't disprove that its use will not adversely impact water resources. In the absence of convincing proof of no impact, the government as the trustee of the public water trust can deny, deny, deny any request for action.

Thus, the County properly denied Kauai Springs' zoning permits.

How it Works

This regime works as it intended (to slow or stop development, to give anyone who might object to a use or action a way to challenge it, and to not act when in doubt (which there almost always is)). But you can see how this regime can be deployed selectively. For example, after the Supreme Court issued its opinion, a liquor manufacturing facility across the highway from Kauai Springs sailed through the zoning and permitting process without a squeak of objection even though it makes its product from water from the exact same water source that resulted in the problem with Kauai Springs, and uses a ton more water. But did anyone even ask whether making liquor (whose main ingredient is water) would affect water resources and insist that the producer disprove an adverse impact on Kauai's water resources? 

No, and there's the rub. The way this works is that officials and agencies have nearly total discretion to apply the exacting public water trust standards ad hoc. There's no requirement of comprehensiveness, or that every action be evaluated under the public water trust. Only a requirement that every agency and official do so when prompted (either sua sponte, or by third-party objectors who object to the underlying action).  

In short, if Water User "A" can stay off the radar, no sweat. Nobody seems to want to challenge the liquor producer, or new hotels (which use a ton of water daily without any restrictions), or the new car wash. But if someone drops a dime on Water User "B," or B ends up on its own catching a government official's attention, then the Kauai Springs principles spring into action:

If there's doubt, do nothing

In our opinion, that's what looks like might have gone on when that State of Hawaii official did not immediately act to release water for fire suppression (if that is indeed accurate, as the news stories report). You can see how government agencies and officials -- used to denying, delaying, and deferring -- are not really that used to acting quickly and decisively to release the precious public resource of water, even when the situation dictates quick action. After all, a wrong move will invite claims that the official -- a trustee of the trust with fiduciary responsibilities to the public to preserve, protect, and conserve the resource -- breached this sacred duty.

In short, Hawaii's water law is very conservative: go slow, do nothing, be sure before you act; there's no downside to doing nothing.

To answer this post's headline's question, "Can one government official really hold up necessary water uses?"

You bet. That's the Hawaii public water trust working as it was intended. There isn't a necessity, or let's-save-some-lives exception, at least just yet.

Sadly, it looks to us like this just had some devastating consequences.

Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, No. SCWC-29440 (Haw. Feb. 28, 2014)

Wine And Takings > Wine And Cheese

Check out this press release, reprinted on the Wine Industry Advisor ("Renowned International Winemaker Files Lawsuit Against Napa County over Denial of Water Rights"), noting that "winemaker of some of the world's most sought-after wines" has sued the County in federal court for a regulatory taking, because it denied well permits after Woodbridge refused to agree to a "strict limit on the water that could be drawn annually from each well, a restriction that does not apply to existing wells[.]"

Want to follow along? Here's the complaint, and here's the docket report. Here's a report on the case from Courthouse News ("Heralded winemaker sues Napa County over water wells").

We may have to do a "site visit" soon, just to be sure these reports are accurate. Just think if this involved our favorite label, Eminent Domaine!

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Join Us August 9, 2023: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

On Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

Colorado: Only The State Can Assert The Public Owns A Riverbed

Hill went down to the fishing hole on a Colorado river, the one he claimed was his favorite. Until those darned landowners "chased him off the property, sometimes with force." He claimed they didn't take too kindly to his efforts to go fishing on their land: "Specifically, Hill alleges that they threatened to have him arrested for trespass, thew baseball-sized rocks at him, and shot a gun at his fishing buddy."

Hill sued, asserting that the landowners don't actually own the riverbed, and thus he had a legal right to be there. His complaint asserted two claims: (1) he sought a declaratory judgment that the riverbed is public land, owned by the State of Colorado (Equal Footing Doctrine and public trust alert!), and (2) he sought to quiet title, apparently in the State. 

In State v. Hill, No. 22SC119 (June 5, 2023), the Colorado Supreme Court sent the case out with more of a whimper than a bang. It didn't deal with the Equal Footing or public trust arguments, but rejected the lawsuit because Hill lacking standing. As the court put it in the first paragraph of the opinion:

This dispute has produced hundreds of pages of briefing from the parties and amici involving extensive discussions of the public trust doctrine, the equal footing doctrine, and arguments around who is best positioned to determine legal policy on access to rivers. But those subjects are ultimately irrelevant to the issue before us. Rather, this case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment “that a river segment was navigable for title at statehood and belongs to the State.” He does not. Hill has no legally protected right independent of the State’s alleged ownership of the riverbed onto which he can hook his declaratory judgment claim. His asserted legally protected interests rest entirely on an antecedent question of whether the State owns the property at issue. Therefore, they cannot provide him with standing to pursue a declaratory judgment action.

Slip op. at 4.

The State didn't want to make any claim to own the riverbed, and the court concluded that Hill could not do so himself. Lacking any interest in ownership other than as a member of the public, he lacked standing to make these claims. Yes, Hill alleged injury, but he didn't meet the second part of Colorado's standing test, that he has a legally protected interest that was injured.

[Disclosure: our law firm colleagues filed an amicus brief in this case.]

State v. Hill, No. 22SC119 (Colo. June 5, 2023) (en banc)

April 27, 2023, 5-7pm, Honolulu: Join Us To Celebrate The Work And Career Of Professor David Callies

Come join us on Thursday, April 27, 2023, from 5-7pm, downtown Honolulu, to celebrate the retirement of Professor David L. Callies from the University of Hawaii Law School.

Join U.H. Law School Dean Camille Nelson, Professor Callies' colleagues, his students (present and former), the Hawaii legal community, and family and friends as we honor 43 years of scholarship, teaching, service, and practice.

Professor Callies is a prolific scholar and author, and has mentored generations of lawyers. Known especially for his work in property, land use, takings, administrative law, and state and local government law, he has also been presented with numerous awards including William and Mary's Brigham-Kanner Property Rights Prize, and the Owner's Counsel of America's Crystal Eagle. 

Invitation and how to RSVP (or click below). Space is limited, so please let us know you are attending as soon as you can.

Details:

Thursday, April 27, 2023
5:00-7:00 p.m.

Second Floor Gallery
Pauahi Tower
1003 Bishop Street
Honolulu, Hawaii 96813

Validated parking: Bishop Square garage (entrance on Alakea Street)

RSVP: [email protected]

See you there!

Professor David Callies - Retirement Celebration Invitation Apr. 27, 2023

CA7: Riparian Owner Has No Property Right In Water Level On Navigable River

There's not a lot new to report in the U.S. Court of Appeals for the Seventh Circuit's opinion in Kreuziger v Milwaukee County, No. 22-2489 (Feb. 13, 2023). But there's a bit of old that make it worth posting.

The issue the court considered was whether riparian property owners have any protectable interest in the level of the water which their property abuts. After the County demolished a long-standing dam on the Milwaukee River resulting in a four-foot lowering of the water next to Kreuziger's upriver property, he sued for a taking. Slip op. at 3 ("The lower surface level of the river exposed a ten-foot strip of marshy land between Kreuziger’s seawall and the water’s edge that had previously been submerged.").

You probably already understand the general rule in these situations: riparian owners have no compensable property interest in any particular water level, as long as the waterway was navigable in its natural state. See United States v. Willow River Power Co., 324 U.S. 499 (1945). But when a waterway is non-navigable in its natural state, the rule may go the other way, with riparian owners having a protectable interest. See United States v. Cress, 243 U.S. 316 (1917).

Here, the Seventh Circuit noted that the Milwaukee River was navigable before Wisconsin dammed it in 1937. Slip op. at 2 ("In 1937 Milwaukee County obtained a permit from the Wisconsin Public Service Commission to build a dam on the Milwaukee River, a navigable waterway, at a location near the northern border of Estabrook Park."). The court rejected the owner's argument that "the defendants owe compensation for taking his riparian right to a higher water level on the river because their removal of the dam did nothing to improve navigation." Slip op. at 5.

Rejecting reliance on a Wisconsin case that seemed to hold that riparian rights were affected when a dam removal caused lowering of water levels on a lake, the Seventh Circuit held that this case only involved private-to-private riparian rights, and not private-to-public. Slip op. at 6. ("That case dealt with a clash of rights among private riparian owners. This case involves the government’s interest in maintaining navigable waterways in the exercise of its responsibilities under the public-trust doctrine."). When the public right of navigation is involved, a different rule applies. Interestingly, the court relied on Wisconsin's public trust doctrine to conclude that "[r]iparian property owners cannot interfere with the public's navigation rights on the state's navigable lakes." Id.

That may be correct as a matter of Wisconsin riparian law, but to us it doesn't really matter because Willow River should control: because the Milwaukee River was navigable, the federal navigation servitude (and not the state's public trust) means that riparian owners have no interest in any particular water level. Yet the opinion casts the issue as one of public trust and not the navigational servitude. See, e.g., slip op. at 8 ("Put more succinctly, the riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine."). That doesn't seem quite right to us. The main reason that the riparian owners here have no property right in the water level isn't the public trust, but rather the federal navigational servitude.

Either way, same result: no private property interest in any particular level of water on the Milwaukee River. Slip op. at 9 ("So Kreuziger’s argument that removing the dam did not actually improve navigation is beside the point.").

Yes, having an "unsightly strip of land abutting his property" instead of the gently-lapping sounds of the river may be "unjust, inequitable and unconscionable," slip op. at 10-11, but that's just too bad: "neither the Wisconsin Constitution nor the United States Constitution promises to 'socialize all losses .. which result from a taking of property." Slip op. at 10 (quoting Willow River, 324 U.S. at 502).

Kreuziger v Milwaukee County, No. 22-2489 (7th Cir. Feb. 13, 2023)

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Here's The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here - space is limited - fee ranges from free to $195 - a bargain!). And you know that our colleague Jim Burling is this year's B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here's the full agenda. The list of speakers is too long to list here but check out these topics:

• Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
• Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that's the panel we're speaking on)
  
• Roundtable: Emerging Issues in Takings and Property Rights Litigation
• Panel 3: Choosing A Property Regime
• Panel 4: Property Rights in Times of Scarcity and Crisis

Who can resist these subjects? Plan on joining join us in September.

2022 Brigham-Kanner Property Rights Conference Speaker Panels

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!"

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

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But 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 upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they 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 property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

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.

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)

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!

Links From Today's ABA RPTE Session

Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section's Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court's decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

• Land use and short-term rentals: Euclid Lives! Mass SJC: "Short-Term" Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of "Residential Character"
• Environmental standing: Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers
• Environmental standing, part 2: Hawaii Supreme Court: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
• Exactions (sorry we didn't get to this one in the session, but here it is anyway because it is a good case to review): Ordinance Requiring Developer Pay For "All Necessary Road Capacity Improvements" Violates Nollan/Dolan
• Public use in eminent domain: So Close: SCOTUS Declines To Revisit Kelo (For Now) (a taking to remedy potential future blight is a "public use")
• Public use in eminent domain, part 2: Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• Just compensation in eminent domain: Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)
• Regulatory takings, emergencies, and necessity: Fourth Circuit: No Taking When Aerial Pesticide Spray Killed Bees ... But Not Why You Think

Thanks again, colleagues.

Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers

When the relief sought in a lawsuit is to compel the State to enact legislation a particular way, you have to know that in most courts that dog won't hunt. Separation of powers, political question, et cetera, et cetera. 

So even though it isn't about takings or compensation, you should check out the Iowa Supreme Court's opinion in Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (June 18, 2021), because in that case, the court rejected the claims of "[t]wo social justice organizations" in a lawsuit that asked the court to order the legislature "to enact legislation that will compel Iowa farmers to take steps that will have the effect of significantly reducing levels of nitrogen and phosphorus in the Raccoon River." Slip op. at 4.

Hold on, you say, on what basis might a court order another co-equal branch to do something like this? And there's the interesting part of the decision - the plaintiffs argued the public trust doctrine:

The plaintiffs’ claims are all based on the public trust doctrine. The plaintiffs allege that their members are beneficiaries under the public trust doctrine and that the State has a duty to protect the public use of navigable waters and to prevent substantial impairment of navigable waters. They allege that the State has abdicated control of the meandered section of the Raccoon River to private parties by pursuing a “voluntary” nitrogen and phosphorus control strategy for agricultural nonpoint sources.

...

The plaintiffs seek both declaratory and injunctive relief, at a high level of generality. In brief, they seek a declaration that the State violated the public trust doctrine by not protecting the public’s recreational and drinking water use of navigable waters.

Slip op. at 7, 8.  

Perhaps not surprisingly, the trial court balked. It dismissed for lack of standing, nonjusticiability, and failure to exhaust administrative remedies.

The Supreme Court affirmed, but only on the first two grounds (standing and political question). To do so, the opinion detailed the public trust, and in contrast to the way some other courts leverage the doctrine expansively, held that it was a limited doctrine, to preserve public use of state waterways, and to prevent alienation of that property. But ultimately, the court "assume[d] for present purposes that the public trust doctrine could be expanded to serve the plaintiffs' regulatory ends." Slip op. at 13.

The court could avoid the question (or, more precisely, saved it for a later day since we doubt this case is the end of the plaintiffs' efforts) because it concluded that the plaintiffs did not have a problem the court could fix. See slip op. at 15 ("Think about it this way: If the court can’t fix your problem, if the judicial action you seek won’t redress it, then you are only asking for an advisory opinion."). There's no causal connection here because the "asserted injury arises from the government's allegedly unlawful failure to regulate someone else[,]" and it is simply speculation that "a favorable court decision in this litigation would lead to a more aesthetically pleasing Raccoon River, better swimming and kayaking on the river, and lower water rates in the Des Moines metropolitan area." Slip op. at 16.

Contrast this approach with the Hawaii Supreme Court's analysis in this recent case which held that anyone with environmental concerns has standing to participate in administrative proceedings that conceivably could affect those interests (although there, the court was dealing with an express provision in the state constitution).

Finally, the court deemed the issues presented political questions:

As we have noted, the plaintiffs here seek to expand the traditional Iowa public trust doctrine. Historically, this doctrine has been applied by our courts in cases seeking to remove private obstructions or interferences. These types of disputes are susceptible to judicial resolution using principles of property law. The plaintiffs allege, however, that the public trust doctrine “broadly protects the public’s use of navigable waters.” In other words, the plaintiffs argue that the doctrine imposes a duty on the State to pass laws that regulate those waters in the best interests of the public.

Under those circumstances, we perceive “a lack of judicially discoverable and manageable standards.” In our view, stating that the legislature must “broadly protect[] the public’s use of navigable waters” provides no meaningful standard at all. Different uses matter in different degrees to different people. How does one balance farming against swimming and kayaking? How should additional costs for farming be weighed against additional costs for drinking water? Even if courts were capable of deciding the correct outcomes, they would then have to decide the best ways to get there. Should incentives be used? What about taxes? Command-and-control policies? In sum, these matters are not “claims of legal right, resolvable according to legal principles, [but] political questions that must find their resolution elsewhere.”

Slip op. at 24-25 (citations omitted).

Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (Iowa June 18, 2021)

We Join Pendulum Podcast To Debate Oysters, Property Rights, Takings

In which we join the Pendulum Land Podcast (again, thank you hosts!) to talk about the Virginia Supreme Court's recent opinion in Johnson v. City of Suffolk, the case we label the "oyster takings" case in which Hampton Roads oystermen claimed 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).

Short story: the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest. Or at least not a property interest worthy of constitutional protection. Thus, no takings claim when Suffolk and the Sanitation District dumped sewage into the river and pretty plainly interfered with some kind of right the plaintiffs owned in the lease. Just not enough of a right to require compensation.  

Our thoughts on the court's decision here (tl;dr: the property expectations of the oystermen in the lease should not be decided as a matter of law, but by the jury as a factual matter: "And there's the problem: to us, these are questions that juries should be reviewing as factual matters, not policy questions by judges (or Justices). The takings inquiry, we've been repeatedly told, is a factual inquiry that looks at the character of the government action (physical invasion or not), and the extent of the interference with "distinct" (i.e., subjective) investment-backed expectations. But like the Virginia court here, many courts routinely treat these as questions of law, to be decided on the predicate "property or not" question.").

In addition to legal insights, the crew offers its tips on Virginia oysters and places to obtain and consume them (when they are not polluted, of course).

New Cert Petition: Judge Barrett's (Sole) CA7 Takings Opinion Is Wrong

You remember that Seventh Circuit case challenging (as, inter alia, a no-public-use taking) the location of the Obama Center in Chicago's Jackson Park under the public trust (from the home of the American public trust doctrine, Chicago)? We wrote about it in "Friends Without Benefits: CA7 Rejects Takings Claim For Obama Center Because Citizen's Group Lacks Property Interest In Public Park."

This was then-Seventh Circuit Judge Amy Barrett's first (and only) takings or property rights opinion she authored prior to her promotion to the Supreme Court.

A citizen's group asserted it has a property interest in Jackson Park by virtue of being the beneficiary of the public trust, and that the handing over of the Park to the Obama Foundation was a private benefit regulatory taking. The plaintiff sought an injunction stopping the transfer, and did not seek just compensation.

The district court and the Judge Barrett-led Seventh Circuit disagreed, both concluding that the plaintiffs do not possess a protected property interest, and that the taking met the low bar established under the Public Use Clause. (Yes, we know this is a regulatory takings claim and not a Kelo-style challenge, but when Professor Richard Epstein is the lawyer for the plaintiffs, do you expect theories that are plebeian?)

Well, now there's been a cert petition filed by the plaintiffs that present two questions:

1. Whether the Plaintiffs possess Article III standing to bring their takings and due process claims in light of the Seventh Circuit’s application of Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) and similar authorities of this Court?

2. If standing exists, whether the City of Chicago violated Plaintiffs’ Fifth and Fourteenth Amendment rights on their takings and due process claims?

We challenge you to read the petition in your head in Professor Epstein's voice. We did, and it is a much more enjoyable read that way.

Follow along with the case with us, or on the Court's docket here.

Petition for Writ of Certiorari, Protect Our Parks, Inc. v. City of Chicago, No. 20-1259 (U.S. Mar. 8, 2021...

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. 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.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent 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.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

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."

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.

Eminent Domain Podcast's Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We're "remote" this year, but that means a different approach to our presentations (and a very modest tuition!).

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," "Evaluating Lockdown, Moratorium, and Emergency Claims," and more (including Ethics for those of you in MCLE jurisdictions). We'll have a post with more details. 

Register now!

Surf And Turf (Our Beef With The Virginia Oyster Takings Case): Although Leases Are "Property," They Don't Confer A Right To Exclude Government Sewage

Often, the dispositive question in many takings cases tuns on whether the plaintiff owns "property," and if so, what rights does that recognize. If you define the property in such a way that ipse dixit excludes the "stick" the owner claims was taken, then the answer is always going to be no property, no taking. To us, this is largely a question of definitions and policy: is this interest, in a judge's view, worthy of constitutional protection?

And that's the wrong approach, because this analysis often seems more like a semantic exercise, undertaken by the wrong party. Instead of concluding, for example, that the property in a case is a lease (a recognized property interest) and then going on to ask whether there's been a sufficient interference with an owner's distinct investment-backed expectations, the question shifts from what we think is the proper focus (a fact question of the impact on an owner's use and actual expectations decided by a jury) to a policy question where the court decides what does and what does not merit protection as a matter of law. Not entirely satisfactory in our view, and leads to some analytical needles being threaded that just are not clear at all. 

Here's the latest example, in which the Virginia Supreme Court opinion has just dropped in a case we've been following since its inception, 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).

Short story: the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest. Or at least not a property interest worthy of constitutional protection. Thus, no takings claim when Suffolk and the Sanitation District dumped sewage into the river and pretty plainly interfered with some kind of right the plaintiffs owned in the lease. Just not enough of a right to require compensation.  

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).

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). Put another way, the oystermen's bundle of property rights do not include the "stick" of either a clean environment, or harvestable oysters. The trial 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 (as did the municipalities, which cross-appealed).

The court heard arguments only a few weeks ago, and even though the Justices acknowledged that "[e]nvironmental protections certainly have changed a great deal in the years since we decided Darling[,] the court concluded that enlarging the scope of environmental protection did not expand the scope of the property rights the oystermen obtained. Slip op. at 8. We're not quite sure what to make of this, except to note that the court in essence concluded that all of the environmental protections and regulations are only limitations on government power and private rights, but don't create any rights that can be enforced outside of the regulatory context. In the words of Kaiser Aetna, these governmental actions did not "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."

The Virginia court examined what rights the leases recognized:

The statutes and case law governing oyster leases lead to several conclusions. First, the petitioners’ leases confer on them the right to physically occupy state-owned bottomland and to exclude others. Code § 28.2-618; Power, 66 Va. (25 Gratt.) at 789. The respondents did not interfere with the petitioners’ rights to be on the leased lands. Second, the leases confer on the The statutes and case law governing oyster leases lead to several conclusions. First, the petitioners’ leases confer on them the right to physically occupy state-owned bottomland and to exclude others. Code § 28.2-618; Power, 66 Va. (25 Gratt.) at 789. The respondents did not interfere with the petitioners’ rights to be on the leased lands. Second, the leases confer on the petitioners the right to physical possession and harvesting of the oysters raised on the leased grounds, to the exclusion of other possible claimants. See Town of Cape Charles v. Ballard Bros. Fish Co., Inc., 200 Va. 667, 673 (1959). The respondents did not remove or physically destroy the oysters themselves. Third, there is a distinction between the water bottoms and the water itself. The petitioners do not own or control the waters that pass over the leased oyster grounds. Fourth, nothing under the governing statutes and case law or the leases themselves confers or presupposes a right to grow oysters in conditions free of pollution or guarantee a lessee a commercially viable oyster lease. To the contrary, the governing statutes contemplate the condemnation of polluted growing areas and oysters when sanitary conditions render the oysters unhealthy for human consumption. See Code §§ 28.2-804 through -807. The statutes further contemplate an abatement of rent if oyster grounds become polluted, Code § 28.2-627, and allow for the possibility of harvesting and “relaying” of oysters to cleaner grounds, see Code §§ 28.2-800, -811.

Slip op. at 8-9. And there's the problem: to us, these are questions that juries should be reviewing as factual matters, not policy questions by judges (or Justices). The takings inquiry, we've been repeatedly told, is a factual inquiry that looks at the character of the government action (physical invasion or not), and the extent of the interference with "distinct" (i.e., subjective) investment-backed expectations. But like the Virginia court here, many courts routinely treat these as questions of law, to be decided on the predicate "property or not" question.

And thus, we get analysis like this: the court also distinguished the cases on which the oystermen relied for their takings arguments, noting that while these cases concluded that a taking had occurred, the nature of the property right at stake was different:

The petitioners rely on a number of cases in support of their position: AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469 (2017); Livingston, 284 Va. 140; and Hampton Rds. Sanitation Dist. v. McDonnell, 234 Va. 235 (1987). In AGCS, the insurer for a grocery store sought to recoup insurance payments made when sewage overflows damaged the inventory of the grocery store. 293 Va. at 473-74. We concluded that such overflows constituted a public use, the personal property that was damaged as a result was recoverable, and the trial court erred in declining to grant the insurer leave to amend. Id. at 486-96. In Livingston, the Virginia Department of Transportation failed to maintain a relocated stream and instead “elected to use” nearby residential developments as “makeshift storage sites for excess stormwater.” 284 Va. at 159. We concluded that the improvements at issue constituted a public use, and that the damage to the plaintiff’s personal property was compensable. Id. at 160. Finally, in McDonnell, we rebuffed a number of challenges to an award for damage to private property when a bypass valve, operating as designed, poured excess sewage onto an adjacent landowner’s property. 234 Va. at 241-42. Arguments advanced by the Commonwealth included a claim that sovereign immunity barred recovery, that the statute of limitations applied, and that the plaintiff had failed to prove his damages with sufficient particularity. Id. at 238-42. None of those cases involved an oyster lease under Code § 28.2-603 and the limited rights conferred by such a lease. In addition, the landowners in those cases had a right to exclude floodwaters or sewage from their property. The lessees here have no right to control the water that flows over their oysters. The nature of the property right at stake here differs from the property right at issue in Livingston, AGCS, and McDonnell, and it compels a different outcome.

Slip op. at 10. In other words, if you are a Harris Teeter grocery store and your oysters get ruined because government floodwaters (AGCS), you may pursue a takings claim, but if your oysters are in a river and are ruined by government sewage, tough s**t.

We'll conclude by circling back to our original thought that the property analysis often gets us to analytical needles we can't mentally thread. Here's an example. The court concluded by noting that "[t]he petitioners also rely on Ballard Bros. Fish Co., 200 Va. 667. In that case, we held that the physical destruction or physical removal of the oysters due to a dredging operation did invade a property right conferred by a state lease, and was, therefore, compensable. Id. at 673. Lessees have a right to prevent others from physically taking or destroying their oysters or oyster beds. The right to avoid physical confiscation or destruction of the oysters, however, differs from an asserted right to raise them in favorable environmental conditions." Slip op. at 11.

We ask: were not the oysters here physically destroyed no less than the food destroyed in AGCS's grocery store? Yes, in both cases, the product still existed after the inundation, but they were economically and otherwise useless. 

We're not suggesting that the oystermen here should have been able to obtain compensation, merely that a jury -- not a judge or a panel of Justices -- should have made the call.

Johnson v. City of Suffolk, No. 191563 (Va. Dec. 10, 2020)

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.

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

Here's the latest in a case we've been following even before its inception (last semester, our William and Mary class visited the site and witnessed the oyster operation affected - see video above), Johnson v. City of Suffolk.

This morning, the Virginia Supreme Court heard oral arguments in the case, and we livestreamed it during our class. (We can't post the audio recording just yet; those are released on Fridays, so hold on just a bit longer if you missed the live event.)

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).

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). Put another way, the oystermen's bundle of property rights do not include the "stick" of either a clean environment, or harvestable oysters. The trial 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 (as did the municipalities, which cross-appealed).

Today's arguments focused in part on the "stick" argument. 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.

All these and more questions were asked-and-answered today.

The case was submitted, with no decision. We'll post the OA recording as soon as it is available. In the meantime, here are the briefs of the party and amicus:

• Brief of Appellants
• Brief of Appellee City of Suffolk
• Appellee Brief of Hampton Roads Sanitation District
• Reply Brief of Appellants
• Brief Amicus Curiae Owners' Counsel of America and Pacific Legal Foundation in Support of Appellants

Finally, 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.

Brief of Appellants, Johnson v. City of Suffolk, No. 191563 (June 11, 2020)

"Fidelity to the law means going where it leads, and sometimes it leads to the conclusion that a law is unconstitutional." What Might A "Justice Barrett" Portend For Property Cases?

We have looked through the entire judicial and scholarly oeuvre of SCOTUS nominee Judge Amy Barrett, who today is continuing to run the gauntlet of the Senate Judiciary Committee. Naturally, our scanners were searching for any of her decisions or writings that might give us some clue how a "Justice Barrett" might treat takings and property cases, should she make the squad.

Frankly, however, there isn't much to hold onto. As our colleagues Bryan Wenter ("What Might Supreme Court Nominee Amy Coney Barrett Mean to Property Rights?") and Mike Ryan ("7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment") have covered, there's just one opinion she authored or joined in which takings was on the docket: a recent decision about the challenge to the Obama Center being erected in a Chicago public park, Protect Our Parks, Inc v. Chicago Park District, No. 19-2308 (7th Cir. Aug. 23, 2020).

Short story of that case: the Barrett-authored panel opinion held that the citizen's group plaintiff doesn't have a property interest in the park, notwithstanding its argument that the public's status as the beneficiary of the public trust (the real public trust, not, you know, the other things that get labeled "public trust" but really aren't the thing you think about when you think "public trust"), is enough of a property interest to come under the Fifth Amendment's protections (or, more accurately, the protections of the Fourteenth Amendment). The court rejected the takings claim.

Interestingly, although framed as a takings problem, the plaintiffs were not seeking just compensation. Instead, they alleged, in effect, this was a private taking. No public use or purpose (the beneficiary is the Obama Center). Yes, a  private regulatory taking. That's giving us Agins/Lingle flashbacks. [Barista's note: we still think the Court was wrong when it held in Lingle that the means-ends analysis ("substantially advance a legitimate state interest") isn't a question for regulatory takings. The Supreme Court instead relocated the inquiry to a due process venue. We argued in an amicus brief in Lingle that the substantially advance inquiry was grounded in the Public Use Clause, and recognized the ability of a property owner to challenge the purpose of the taking, even if the taking was a regulatory taking and not an affirmative exercise of the power of eminent domain. But the Court in Lingle was unanimous, so what do we know?]

We found it interesting that Judge Barrett didn't really flinch at the plaintiff's argument and like the property question, dismiss it on a threshold question (this isn't takings, but due process), but instead tackled it on the merits, applying Kelo/rational basis:

Even assuming that the City’s use agreement with the Foundation qualifies as a transfer to a private party, the Supreme Court held in Kelo v. City of New London that a transfer to a private owner can still be constitutional if it is done for a “public purpose.”  545 U.S. 469, 483–84 (2005).  What’s more, the City’s judgment that a particular transfer and use has a public purpose is entitled to deference.  Id. at 488–89.  It’s hard to see, then, how we could “second-guess the City’s determination[]” that building the Center—with its museum, public library branch, auditorium, athletic center, gardens, and more—is a use with public benefits.

Slip op. at 21.

Before you put her in the "anti-property" camp by this decision, remember that as a Seventh Circuit judge, her discretion on whether and how to apply Kelo and other Supreme Court rulings is limited. Does this mean that a Justice Barrett would not favor revisiting Kelo or any of the other takings and property cases that elicit a lot of criticism from the bench, bar, and academy? After all, a lot of her scholarly writings were about stare decisis and whether precedent should be respected or overturned. Might she be willing to return to the eminent domain and takings issues that have caused so much grief, both in the public arena and down in the takings trenches? She has written that "Fidelity to the law means going where it leads, and sometimes it leads to the conclusion that a law is unconstitutional," so maybe.

One final thought: where Justice Barrett might really be a game-changer is not as the fifth or sixth vote on the merits of a case, but as the fourth vote to grant cert. We get the sense that because one or two of the right-leaning Justices might "go wobbly" on takings and property cases, that there have been more than a few "strategic denials," wherein an otherwise certworthy petition doesn't get four votes to grant. Thus, rather than risk making bad law worse, the petition gets denied even though it raises a good issue. Will her being the fourth vote mean that petitions like these may get a fairer shake, and that we might see more takings-related cases being considered (esp a Just Compensation case, an issue the Court has not looked at in more than three decades)?

Stay tuned, this may get really interesting. 

Protect Our Parks, Inc. v. Chicago Park District, No. 19-2308 (7th Cir. Aug. 21, 2020) 

Friends Without Benefits: CA7 Rejects Takings Claim For Obama Center Because Citizen's Group Lacks Property Interest In Public Park

We've been meaning to write up the U.S. Court of Appeals' decision in a case we've been following, Protect Our Parks, Inc v. Chicago Park District, No. 19-2308 (Aug. 231, 2020), but our Illinois colleague Mike Ryan was quicker on the draw.

Rather than summarize Mike's write up, we simply suggest you go to his firm's blog and read "7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment."

Short story: the citizen's group plaintiff doesn't have a property interest in Grant Park, notwithstanding its argument that the public's status as the beneficiary of the public trust (the real public trust, not, you know, the other things that get labeled "public trust" but really aren't the thing you think about when you think "public trust"), is enough of a property interest to come under the Fifth Amendment's protections (or, more accurately, the protections of the Fourteenth Amendment). The court rejected the takings claim.

Interestingly, although framed as a takings problem, the plaintiffs were not seeking just compensation. Instead, they alleged, in effect, this was a private taking. No public use or purpose (the beneficiary is the Obama Center). A private regulatory taking. That's giving us Agins/Lingle flashbacks. [Barista's note: we still think the Court was wrong when it held in Lingle that the means-ends analysis ("substantially advance a legitimate state interest") isn't a question for regulatory takings. The Court instead relocated it to a due process venue. We argued in an amicus brief in Lingle that the substantially advance inquiry was grounded in the Public Use Clause, and recognized the ability of a property owner to challenge the purpose of the taking, even if the taking was a regulatory taking and not an affirmative exercise of the power of eminent domain. But the Court in Lingle was unanimous, so what do we know?]

 Here' s what Mike writes about how the Seventh Circuit dealt with that argument:

In addition to finding the plaintiffs’ lack of a protected property interest was a “fundamental defect” in their federal takings claim, the Seventh Circuit also construed plaintiffs’ takings claim, which sought injunctive relief rather than money damages, as an argument that the Obama Presidential Center did not qualify as a “public use.” In easily dismissing this argument as well, the Seventh Circuit, relying on the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), stated that even assuming there was a transfer of the use of Jackson Park to the Barack Obama Foundation, a transfer to a private owner can still be constitutional if it is done for a “public purpose.” The Seventh Circuit than concluded that it would not second guess the City of Chicago’s determination “that the Obama Presidential Center – with its museum, public library branch, auditorium, athletic center, gardens, and more – is a use with public benefits.”

Game, set, match.

Protect Our Parks, Inc. v. Chicago Park District, No. 19-2308 (7th Cir. Aug. 21, 2020) 

Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

News just in: we've just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we're going online.

Not a big surprise, but still a bit disappointing, and it's a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we're making lemonade out of these lemons, and we'd appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we're not going to do two-and-a-half-days remotely, we're paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants. If you haven't taken the dive and joined us in the past because you could not spend the time away or the costs of attending in-person kept you away, this will be your chance to see what we're all about and get a taste of what you've been missing, so you can join us when we reconvene in-person in 2022. 

Stay tuned for more details, to be released shortly! 

Amicus Brief In Virginia Oyster Takings Case: City's Purposeful Pollution Of River Is A Taking Under The Virginia Constitution

Here's the amicus brief filed yesterday in a Virginia Supreme Court case we've been following.

This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River 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.

The brief argues that its all about deliberateness and foreseeability, and distinguishes between takings and torts:

Inverse condemnation law in Virginia recognizes a valid claim against state action that foreseeably results in the destruction or invasion of private property for a public use. See Livingston v. Virginia Department of Transportation, 726 S.E.2d 264, 271-72 (Va. 2012). Unlike for claims sounding in tortious negligence, high levels of care exercised by the government will not exempt it from the obligation to pay, as the Constitution of Virginia mandates compensation for damagings and takings of property. Va. Const. art. I, § 11 (1971) (emphasis added). So long as the interference with property rights constitutes a public use, the government is liable under the “implied contract” of Article I, § 11. See AGCS Marine Ins. Co. v. Arlington Cty., 800 S.E.2d 159, 163 (Va. 2017) (describing the constitutional promise of compensation for takings and damagings as an “implied contract”).

Br. at 3-4 (footnote omitted).

Stay tuned, we'll bring you more once filed.

Brief of Amicus Curiae Owners' Counsel of American and Pacific Legal Foundation in Support of Appellants, J...

Cal App Backs Into The Question: Riparian Rights Are Limited To Reasonable Use, So No Property Right In What Agency Deems Unreasonable Use

A long opinion, but a short post. In Stanford Vina Ranch Irrigation Co. v. California, No. C085762 (June 18, 2020), the California Court of Appeal held that water rights are not really property rights.

That's a bit of an overstatement, of course. But not a huge one.

In an inverse condemnation case, the court held that the owner of riparian rights did not have a protectable property interest in any amount of water, because riparian use, by definition, must always be reasonable. And the state gets to define what use is "reasonable." Thus, the logic goes, because the State Water Resources Control Board determined by emergency regulation that any uses which might jeopardize the flow of water into a creek (to protect fish) were unreasonable, there's no takings claim for an owner who claimed a vested right to the water. No property, no taking:

We have already explained the Board’s emergency regulations defining as unreasonable any diversion of water that threatened to drop the flow of Deer Creek below the emergency minimum flow requirements was a valid exercise of the Board’s legislative authority to regulate the reasonable use of water. Thus, Stanford Vina possessed no vested right, fundamental or otherwise, to divert water from Deer Creek in contravention of the emergency regulations.

Slip op. at 32.

Because the agency had substantial evidence to support its emergency fish-protection regulation, end of story. 

However, we address Stanford Vina’s argument that the “curtailment actions” amounted to a taking of vested water rights without just compensation as a challenge to the legality of the curtailment orders because any such taking occurred not when the regulations were adopted, but when those regulations were applied to curtail Stanford Vina’s diversions of water from Deer Creek. This takings claim fails for the same reason we rejected Stanford Vina’s argument regarding application of the independent judgment standard of review: Stanford Vina possessed no vested right to divert water from Deer Creek in contravention of the emergency regulations. As stated by our Supreme Court in Gin S. Chow: “There is a well recognized and established distinction between a ‘taking’ or ‘damaging’ for public use and the regulation of the use and enjoyment of a property right for the public benefit. The former falls within the realm of eminent domain, and the latter within the sphere of the police power. That the constitutional amendment now under consideration is a legitimate exercise of the police power of the state cannot be questioned.” (Gin S. Chow, supra, 217 Cal. at p. 701.) “[S]ince there was and is no property right in an unreasonable use, there has been no taking or damaging of property by the deprivation of such use and, accordingly, the deprivation is not compensable.” (Joslin, supra, 67 Cal.2d at p. 145.)

Slip op. at 33-34.

Given these are water rights -- and you know how most courts treat property interests in water -- can you say you are really surprised? 

Stanford Vina Ranch Irrigation Co. v. California, No. C085762 (Cal. Ct. App. June 18, 2020)

Property Owners' Brief In Virginia Supreme Court "Oyster Takings" Case

Here's the latest in a case we've been following (we visited the site last November with our William and Mary class), the property owners' Opening Brief in  a case being considered by the Virginia Supreme Court.

This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River 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.

The brief also asserts a public trust argument:

This brings the argument full circle: Assuming for argument’s sake that this Court’s Darling ruling permitted discharge of pollutants without consequence, the General Assembly overturned the precedent in Franklin Roosevelt’s second term. Eight years later, it declared the discharge of pollutants into waterways to be against public policy. 1946 Va. Acts ch. 63B, §1514-b(4) (State Water Control Law). That public-policy declaration survives today as Code §62.1-44.2.

Our laws – the jus publicum and public-trust doctrines; our Constitution and Code – do not authorize the violation of declared public policy in this way. Now, unlike in 1918, localities and authorities have no power to pollute the Commonwealth’s waters and damage its oyster beds with impunity.

Br. at 12. Stay tuned. The court will likely hear argument late this year, and in the meantime, we shall continue to follow along.

Brief of Appellants, Johnson v. City of Suffolk, No. 191563 (Va. June 11, 2020)

Fifth Circuit: Texas Groundwater Rights Are Takings Clause "Property"

There's a lot of opinion in the U.S. Court's of Appeals' opinion in Stratta v. Roe, No. 18-50994 (May 29, 2020). Yes, the court reversed the district court's dismissal of a takings claim. But most of the opinion is devoted to the question of whether a Texas water conservation board -- an agency whose mission is to regulate surface water uses -- may take advantage of the State of Texas's 11th Amendment immunity (no, held the court). We recommend that part of the opinion to you, federal courts junkies.

But there's a couple of takings gems in there also. The case involved a challenge by a property owner who was (allegedly) treated by the water conservation board less generously than an (allegedly) similarly-situated municipality, resulting in the owner's inability to make use of its groundwater rights. (In short, a Pennsylvania Coal claim, where instead of coal being required to be left in the ground, it was water.) The district court dismissed for failure to state a claim and for lack of jurisdiction (the 11th Amendment issue).

After concluding that the owner's claims against the water conservation board are not barred by the State of Texas's federal court immunity, the court made short work of the district court's Williamson County dismissal. The Fifth Circuit rejected the conclusion that the takings claim was not ripe because the owner had not sought compensation via a state law inverse claim in a Texas court. Knick, and all that. Slip op. at 19-20. The Fifth Circuit also concluded that the board had made a final determination.

The court also reversed the district court's Burford abstention conclusion. For those of you who don't offhand recall the doctrine, Burford abstention is a comity doctrine, where the federal court declines to exercise jurisdiction because there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar." Slip op. at 21. That's a mouthful of mostly mushy concepts, but in the end, the Fifth Circuit concluded that the issues in the case (Texas water rights, federal constitutional takings and equal protection rights) mean no abstention:

The BVGCD is no Texas Railroad Commission, and the federal court should not have abstained from the constitutional issues raised by Fazzino. The claims do not delve into unduly complex issues of state law, the state concerns that are implicated are not overriding in light of the remedy sought, no state law would be usurped by a federal decision, and statewide processes or regulatory regimes would not be disrupted. The district court abused its discretion in deciding to abstain under Burford.

Slip op. at 24.

Having disposed of the procedural roadblocks, the court made short work of the failure to state a claim dismissal. The district court concluded that the plaintiff had not plausibly pleaded that it owned property because Texas law is "unsettled." The Fifth Circuit first noted that the water conservation district's argument on this issue was "a bright red herring." Slip op. at 24-25. The court held held that groundwater rights are "property" under established Texas law (Edwards Aquifer Auth. v. Day, 269 S.W.3d 814 (Tex. 2012)):

Fortunately, Texas law is not unsettled as to the landowner’s basic rights. The Texas Supreme Court plainly held in Day that a landowner’s property rights include the ownership of groundwater in place beneath his acreage, and such ownership right is subject to takings claims. The court stated at the outset that it would decide “in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed [by the Texas Constitution]. We hold that it does."

What is “unsettled” about Day’s interpretation of the common law and statutory rights of groundwater owners? Indeed, it is BVGCD, not Fazzino, that would “unsettle” Texas law by asking the federal court essentially to reconsider Day and dramatically reduce the constitutional rights of landowners to the groundwater in place.

Slip op. at 25-26 (quoting Day, 369 S.W.3d at 817).

Although it may be "challenging" to "assess, as the state supreme court did in Day, whether the groundwater scheme effectuated by BVGCS's Rules promulgated in December 2004 has resulted in a taking of Faxxino's interest," slip op. at 27, "[t]hat this task my be challenging is not the same as concluding it is infeasible."

In short, it might be hard, but not legally impossible: go litigate your takings claim, property owner.

Stratta v. Roe, No. 18-50994 (5th Cir. May 29, 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)

Hawaii Supreme Court Livestream Oral Argument In Water Rights, Admin Law Case (Tuesday, May 5, 2020, 10am HT, 1pm PT, 4pm ET)

Fire up your web browsers, turn up your speakers, and tune in tomorrow, Tuesday, May 5, 2020, at 10am Hawaii Time (1pm Pacific, 2pm Mountain, 3pm Central, and 4pm Eastern) for a first: the Hawaii Supreme Court will be livestreaming oral arguments in an important case about administrative law, water rights, environmental law, and native Hawaiian rights.

(For all you "mainland" folks, you may want to tune in even if those topics don't interest you, just to hear the way our court crier opens the proceedings. Yes, the traditional "Oyez" call is made, but if these arguments are like in-person OA at the court, there's a very Hawaiian touch also.)

Here's the summary of the issues, from the Judiciary web site:

HEALOHA CARMICHAEL, LEZLEY JACINTHO, and N MOKU AUPUNI O KO OLAU HUI, Petitioners/Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants, vs. BOARD OF LAND AND NATURAL RESOURCES, SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources, the DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Defendants-Appellees/Cross-Appellees/Cross-Appellants, and ALEXANDER & BALDWIN, INC., EAST MAUI IRRIGATION CO., LTD., and HAWAIIAN COMMERCIAL AND SUGAR CO., Respondents/Defendants-Appellants/Cross-Appellees, and COUNTY OF MAUI, DEPARTMENT OF WATER SUPPLY, Respondent/Defendant-Appellee/Cross-Appellant/Cross-Appellee.

The above-captioned case has been set for argument on the merits.

It will be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

In 2000, the Board of Land and Natural Resources (“the BLNR”) issued four annual revocable water permits to Alexander & Baldwin, Inc. (“A&B”) and its subsidiary, East Maui Irrigation Co., Ltd. (“EMI”), giving them the right to develop, divert, and use water from four areas of the Ko olau Forest Reserve in East Maui. In 2001 and 2002, the BLNR voted to “hold over” these permits pending the resolution of a contested case concerning A&B and EMI’s application for a long-term lease of the land. Beginning in 2005, the BLNR annually voted to “continue” A&B and EMI’s permits for one additional year at a time.

After the BLNR voted to continue the permits in 2014, Healoha Carmichael, Lezley Jacintho, and N Moku Aupuni O Ko olau Hui filed a complaint for declaratory and injunctive relief, seeking to have the permits invalidated on the basis that they should not have been continued without preparation of an environmental assessment pursuant to the Hawai i Environmental Policy Act (“HEPA”), Hawai i Revised Statutes (“HRS”) Chapter 343. The plaintiffs moved for partial summary judgment, which the Circuit Court of the First Circuit (“circuit court”) granted, holding that, while continuation of the permits did not trigger the requirements of HEPA, continuous uninterrupted use of the land violated the requirements of the public lands management statute, HRS Chapter 171.

The defendants—the BLNR, the Department of Land and Natural Resources, BLNR chair Suzanne Case, A&B, EMI, Hawaiian Commercial and Sugar Co., and the Maui County Department of Water Supply—appealed the circuit court’s decision to the Intermediate Court of Appeals (“ICA”). The ICA vacated the circuit court’s order, holding that continuation of the permits was authorized under HRS § 171-55, notwithstanding limits imposed by HRS § 171-58 or HEPA, but that there were disputed factual issues that precluded a grant of summary judgment. The plaintiffs filed an application for writ of certiorari with this court, presenting the following questions for our review:

1. Does HRS chapter 343 apply to BLNR’s decision to continuously renew revocable permits authorizing the daily use of public lands to divert millions of gallons of water on a holdover basis for over a decade and counting?

2. Does HRS § 171-55 allow for the renewal of revocable permits for the use of state land and water indefinitely despite the maximum term of one year prescribed by HRS § 171-58 for the disposition of water rights specifically?

3. Did the Circuit Court err by refusing to grant summary judgment to Petitioners on the grounds set forth in counts 1 and 2 of their First Amended Complaint?

4. Did the ICA err by concluding HRS § 171-55’s “notwithstanding any other law to the contrary” language nullifies (a) the maximum term of one year prescribed by HRS § 171-58 for “temporary” revocable permits and (b) HRS chapter 343 EA and environmental impact statement (EIS) requirements for “temporary” revocable permits where such interpretations conflict with well-settled case law, are unsupported by the legislative history, and run contrary to the plain meaning of the statutes?

5. Did the ICA err by refusing to rule that BLNR’s decision to renew the Revocable Permits on a holdover basis violated HRS chapter 171-55 as a matter of law due to BLNR’s failure to make findings that the permits are “temporary” and serve the “best interests of the State”?

Cal Ct App: Storage Of Publicly-Owned Water On Private Property Isn't A Taking

We were all set to digest the California Court of Appeal's opinion in Ruiz v. County of San Diego, No. D074654 (Apr. 7, 2020), when we realized that the opinion was not issued today, but merely ordered published today, and that the opinion was issued last month as an unpublished. So we checked with the California Eminent Domain Law Report, and sure enough, Brad Kuhn had written up the case back when it was issued. Thus, we won't be diving into the case in too much detail, but instead offer a couple of thoughts to supplement Brad's. 

Short story: Ruiz's property suffered a flood after a storm drain installed by the property's developer overflowed. Installed 50 years ago, the drain eventually rusted. The drain was privately owned. The developer had offered to dedicate the drain to the County, but the County had not accepted the dedication.The land over which it traveled is privately owned. But the water in the pipe -- the water that flooded Ruiz's house -- is owned by the public. The trial court determined the flood was an inverse condemnation. See slip op. at 8 ("The court found that 'the continuous use of causing public water from the County's drains and inlets through the metal storm drain pipe on the [Ruiz] property caused the pipe to deteriorate and fail, which in turn caused the flooding and damage to [Ruiz's] property.'"). 

The Court of Appeal reversed, and entered judgment for the County:

The primary issue on appeal is whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless becomes a public improvement because "public water" drains through it. We agree with the County that on this record and under settled law, the answer is no.

Slip op. at 2. 

The appeal court first rejected the argument that the County had impliedly accepted the dedication. No, the court concluded, simply using the private drain for a long, long, time does not mean it was a public improvement. "Here the undisputed evidence is the County did nothing demonstrating dominion or control of the Ruiz pipe. There is no evidence that any County employee participated in planning, constructing, maintaining, inspecting, or repairing the Ruiz pipe.The County had no right of access to the Ruiz pipe; it is entirely on private property." Slip op. at 15. 

But what about the water in that private drain? If the public owns the water as is true in some jurisdictions as a matter of "public trust," does that change the equation, even if the instrumentality of the flood was a private drain. For example, courts have held that an exercise of eminent domain is for public use because the public has the right to use the good flowing through the taken land, even if the taken land ends up in private hands. For example, the South Dakota Supreme Court has upheld a taking even though the public was excluded from the transmission line and the property taken, because the public has a right to use the electricity being transmitted. Isn't that like the public water flowing in the drain? But as far as we can tell, however, the opinion never actually addressed that question.

The closest we think the court came to it was the "vibe" that the flooding wasn't something that Ruiz would have avoided in the absence of the drain: "[b]efore the Ruiz's subdivision was developed, the natural watercourse in the Valley was a stream. The stream ran easterly, draining surface waters across the Property and continuing to a lake." Slip op. at 2-3 (footnote omitted). That, in turn, shows that the County didn't really do anything -- or fail to do something -- that would result in takings liability. 

And finally, what of the Armstrong cost-spreading principle? Sorry, the court concluded, if we were to apply that faithfully, the government simply could not afford to build and maintain public works:

Ruiz asserts that as a matter of policy, they "should not have to bear the burden of a storm drain system which serves the general public." We sympathize with the situation Ruiz find themselves in, which can be traced all the way back to their purchasing the Property unaware of the pipe's existence. We also agree with them that property owners should not be required to contribute more than their fair share to a public undertaking. However, that policy must be balanced with the "possibility that imposing open-ended liability on public entities charged with creating and maintaining flood control improvements will discourage the development of needed public works." (Bunch, supra, 15 Cal.4th at p. 450.) The legal principles developed in the cases we apply to this record are an outgrowth of courts having balanced these policy considerations, and compel reversal.

Slip op. at 33-34. 

Ruiz v. County of San Diego, No. D074654 (Cal. App. Apr. 7, 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.  

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. 

(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.  

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)

Don't Miss Out: Join The "Big Guns" And Secure Your Space At ALI-CLE's Upcoming Eminent Domain & Land Valuation Litigation Conference (Jan 23-25, 2020, Nashville)

We were not as creative as our colleague Paul Henry (see below), but our Planning Co-Chair Joe Waldo and I wanted to personally invite you to join the "big guns" in our area of law at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, in Nashville, Tennessee.

We've assembled an excellent faculty, and an agenda that covers the hot topics of the day. Go here to view the complete faculty list and agenda. Water rights, Knick, appraisal, ethics, civil rights, and a whole lot more in three days of the longest (and we think best) conference in our area of law. Also, for those new to the field, Andy Brigham and Jack Sperber are again leading their "Eminent Domain 101" program. A great way to learn the topic, or for experienced lawyers to get a quick refresher on the basics. Your registration allows free movement between all sessions and all tracks, so you can choose your menu ala carte.  

Of course, we're doing more than simply "talking shop," and we shall have our usual full slate of networking events, thanks to some very generous sponsors. Our faculty and attendees are well-known for being some of the friendliest and most welcoming in the business. And this is Nashville, and all that entails.

Register now. Spaces are already filling up. We are already at 25% higher registrations than at this point last year for the 2019 Palm Springs conference. The past few years have either sold out or come close, and the hotel block isn't unlimited. We want you with us, so sign up now!

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. 

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