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Today’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 is generating a lot of analysis and commentary. When the case was filed and argued, we suspected it would generate keen interest, so in anticipation, the ABA’s State and Local Government Law Section assembled an expert panel discussion of the case at the upcoming ABA Annual Meeting in San Francisco.

Update and Lessons of Stop the Beach Renourishment v. Florida Department of Environmental Protection is scheduled for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. I will be moderating the panel, which includes expert takings law advocates and scholars. All of us filed briefs in the case:

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Continue Reading ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)

Here are some links to analysis of today’s U.S. Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11:

Continue Reading Stop The Beach Links

Professor Ben Barros has posted the first analysis and summary of today’s Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11. See Supreme Court Rules in Stop the Beach.

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court’s judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court’s opinions and with links to commentary about the case.

We will be posting some thoughts after a chance Continue Reading First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case

Things I never thought I would see in a Supreme Court opinion include the riddle “how much wood would a woodchuck chuck if a woodchuck could chuck wood,” but there it is, in black and white on page 11 of Justice Scalia’s opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is…

Continue Reading Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”

The WMA Reporter, the monthly publication of the Western Manufactured Communities Housing Association has published A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak), my short article that attempts to deconstruct some of the more common terms property lawyers toss about. Here’s the Introduction:

One of my law school professors once remarked (hopefully in jest) “if it ain’t Latin, it ain’t the law.” While thankfully we have moved away from the days when Latin and Norman French were the languages of the law, those of us who regularly represent property owners defending their rights sometimes toss about terms that, although they purport to be standard English, often make normal people look at us askance.

We may forget that not everyone might understand what we mean when we say, for example, “The court dismissed the regulatory takings claim on ripeness grounds under Williamson County because the…

Continue Reading A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)

Today, by a 3-2 vote, the Hawaii Supreme Court declined to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

In Act 73, the Hawaii Legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called “future accretions.”

The court…

Continue Reading HAWSCT Denies Cert In Beach Accretion Case

Comes news that the State Land Use Commission has reclassified a large portion of state-owned land in east Oahu from “urban” to “conservation.” See Ka Iwi shoreline area reclassified as conservation land (via Hawaii News Now) and Ka Iwi coast gets added protection (via the Honolulu Advertis…Honolulu Star-Advertiser). The reports state the “reclassification should make the development of the makai [seaward] area of the coastline ‘a remote possibility'” (quoting the governor’s press release).

The reclassification from urban to conservation means that instead of the City and County of Honolulu’s zoning regulating the land, the State Department of Land and Natural Resources will exercise exclusive regulatory control. (Land classified urban is zoned and primarily regulated by the counties, whereas under Haw. Rev. Stat. § 205-5, the DLNR exclusively regulates conservation-designated land.)

But we’re not quite sure what we’re missing here, since it seems the fact the…

Continue Reading You Take It, You Bought It

Here’s the latest development in the reconsideration process in the Turtle Bay/Kuilima EIS case, Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010).

As we noted earlier, Kuilima Resort Company filed a motion asking the Hawaii Supreme Court to reconsider or clarify its opinion in the case. Recently, a motion for leave to file an amicus brief in support of Kuilima’s motion for reconsideration was filed by the Land Use Research Foundation of Hawaii and a whole bunch of others (too numerous to list, but read the brief if you need to know who they are).

The motion argues:

Movants seek to file an amicus curiae brief to apprise the Court of important legal issues and public interests at stake in this precedent-setting case of first impression including, but are not limited to, how:

1. The Court Opinion, unless reconsidered or clarified…

Continue Reading Another Brief Seeking Reconsideration Of HAWSCT’s Kuilima/Turtle Bay Supplemental EIS Opinion

A couple of days ago, we posted “Final Briefs In Hawaii Beach Takings Case: Is ‘Future’ Accretion A Present Property Interest?” with what we thought was a complete set of the merits and amicus briefs filed in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010).

Turns out we missed one set, the amicus brief of Hawaii’s Thousand Friends which urges the Hawaii Supreme Court not to accept the application for a writ of certiorari filed by the property owners, and the property owners’ brief responding to HTF’s brief.

Here they are:

[Our usual disclosure: we filed an amicus brief in the Intermediate Court of Appeals supporting the property owners, and recently filed an amicus brief in the Supreme Court].

Unless there is another…

Continue Reading Final (Final) Briefs In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?