Environmental law

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William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee) is a frequent author and speaker on the topic of regulatory takings and is familiar to readers of this blog. (His next gig is a talk on Penn Central and inverse condemnation at the 12th Annual Texas Eminent Domain SuperConference February 11-12, 2013, in Austin.)

Bill fills us in on the Texas Supreme Court’s decision in EdwardsAquifer Authority v. Day, 274 SW.3d 742, (Tex. 2012). The court issued the opinion in February 2012, but recently denied a motion to rehear the case, thus making it final. 

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Regulatory Takings, Texas Groundwater, and Hydrofracking

by William W. Wade, Ph.D.

Texasmay have created the takings and condemnation lawyer full-employment act. 

TheTexas Supreme Court in February 2012 reversed a hundred years of water law,changing groundwater ownership rights from a “rule of capture” to ownership of”groundwater…

Continue Reading Guest Post: Regulatory Takings, Texas Groundwater, And Hydrofracking

In “When Government Takes You Hostage,” lawprof Richard Epstein weighs in on the issues in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). In that case, the U.S. Supreme Court will address whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Professor Epstein writes:

The situation that is now before the Supreme Court in Koontz shows the folly of the current law, which rejects the long-established common law baselines between neighbors. No longer does the state have to take (and pay just compensation) to satisfy its environmental goals. Rather, the entire mitigation doctrine amounts to nothing more than a form of grand theft larceny by which the state first claims for nothing a state-wide environmental easement, which it will then sell…

Continue Reading Epstein On Koontz: “Grand Theft Real Estate?”

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul’s most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday’s short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?

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Honolulu Rail Remedy – Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been onlyminimally stunned by the U.S. District Court for the District of Hawaii for itsfailure to adequately study the project’s possible effects on Chinatown and MotherWaldron Park (an old urban park/playground), and for its failure to articulatethe reasons why a tunnel under Beretania Street (a major city arterial) wasrejected.

Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.comv.

Continue Reading Guest Post: Honolulu Rail Remedy – Phasers On Minimal

The Hawaii Supreme Court recently accepted cert in two cases worth watching. Our colleage Rebecca Copeland has summaried both and posted the relevant documents over at Record on Appeal.

  • Kanahele v. Maui County Council, No. SCWC-29649. It looks like the court will be wading into the nuances of Hawaii’s “Sunshine Law,” and what it means for public hearing notices.

Continue Reading Two Hawaii Supreme Court Cases To Watch

In Hall v. Dep’t of Land and Nat. Resources, No. 12-0000061 (Dec. 14, 2012), the Hawaii Intermediate Court of Appeals held that a development proposed by the historic Kawaiahao Church in Honolulu is not exempt from historic preservation review, and the state should have required the preparation of an archaelogical inventory survey prior to the State Historical Preservation Department’s check off on the project.

The ICA analyzed the case under the tests set out in the Hawaii Supreme Court’s recent decision in Kaleikini v. Yoshioka, 283 P.3d 60 (2012), in which the court held that archaeological review, if required, must come before agency approval.

More to follow.

Hall v. Dep’t of Land and Nat. Resources, No. CAAP-12-0000061 (Haw. App. Dec. 14, 2012)Continue Reading HAWICA: Kawaiahao Church Development Not Exempt From Archaeological Review

We always like reading amicus briefs filed by the Center for Constitutional Jurisprudence because they tend to focus on the history of whatever issue they are addressing, and the brief they (along with the Atlantic Legal Foundation and the Reason Foundation) filed in in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) fits the bill. Check it out.

This looks like the final amicus brief supporting the property owner/petitioner. Now we wait for the respondent’s brief (and amici). Stay tuned.Continue Reading One More Top Side Amicus Brief In Koontz

Well, this is unusual, althought it should not be. 

In this short order, the Supreme Court of Ohio has held the state’s Department of Natural Resources in contempt for not moving fast enough to compensate property owners whose land had been flooded. (In California, that would be called “normal planning delay.”)

In Ohio, what would be called an inverse condemnation or regulatory takings claim in other jurisdictions takes the form of a mandamus petition to compel the government to institute eminent domain. Several property owners instituted a mandamus action after their lands were flooded because the state did not draw down the level of a lake, despite its ability to do so. In 2011, the Ohio Supreme Court issued the writ, ordering the Department to institute eminent domain proceedings “immediately” amd tale steps to compensate the owners. See State ex rel. Doner v. Zody, 958 N.E.2d…

Continue Reading Ohio Supreme Court Finds Dep’t of Natural Resources In Contempt For Dragging Its Feet In Compensation

We’ve talked California raisins before, but the latest is about oysters. Specifically, an oyster farm in a Marin County National Seashore, the Drakes Bay Oyster Company.

Interior Secretary Ken Salazar visited the place a couple of weeks ago to see if he would be willing to extend the farm’s existing license, which has been in place for decades. No deal, he concluded, despite lobbying efforts on the owner’s behalf by powerful U.S. Senator Dianne Feinstein. He ordered the farm to shut down in 90 days. 

When that failed, the next step was federal court, and earlier this week the oyster farmer sued in U.S. District Court in San Francisco. Here’s the complaint, if you want to read the details. The claims center on federal environmental laws and the Administrative Procedures Act, but yes, there’s the obligatory takings claim, alleging that the order to cease operations was a taking…

Continue Reading What’s The Beef In California Oyster Dispute?

Here are some thoughts about yesterday’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), in which a unanimous Supreme Court held that government-induced flooding could be a taking, even if temporary. 

Bad Puns and a “Flood” of Litigation

First, the temptation in flooding cases is to make bad puns (the same seems to hold true for beach cases (‘shifting sands,’ for example  … what is it about property cases that especially inspires these bad puns anyway?), and this one is no exception. Justice Ginsburg’s opinion dismissed the trope that holding in favor of the property owner would result in more litigation or a resistance on the part of government to take flood control measures:

The sky did not fall after [United States v.] Causby[, 329 U.S. 256 (1946)], and today’s modest decision augurs no deluge of takings liability.

Slip op.

Continue Reading More Thoughts On Flooding, Takings, And How To Read A Supreme Court Opinion