Environmental law

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An interesting difference of opinion about the message in the current blockbuster Avatar. Eminent domain mavens Gideon Kanner and Rick Rayl initially agree that it’s not about eminent domain, but diverge on their philosophical approaches to the issue.

Rather than attempt to summarize their respective positions, it’s probably better we just refer you to their back-and-forth posts. Start with Rayl’s “Is Avatar Really a Political Commentary on Eminent Domain Abuse?” Follow that with Kanner’s “Is the Movie ‘Avatar’ a Story About Eminent Domain?” Finish with Rayl’s reply, “Response to Professor Kanner About Avatar.”

At least one other commentator thought the film was about property rights and eminent domain:

“Avatar” is like a space opera of the Kelo case, which went to theSupreme Court in 2005. Peaceful people defend their property againstoutsiders who want it and who have vastly more power. Jake rallies theNa’vi…

Continue Reading Competing Views Of James Cameron’s “Avatar” (And Eminent Domain)

I’m on the road today, so don’t have the time to read this opinion in detail, but here’s another one for all you CEQA mavens.

In Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, No. S163680 (Feb. 11, 2010), the California Supreme Court held:

In general, challenges to governmental action under the California Environmental Quality Act (CEQA) face unusually short statutes of limitation. (§ 21167.) Most limitation statutes are triggered by the filing of a public notice, which reports an agency‟s determination about the applicability of CEQA or the potential environmental impact of a project. (§§ 21108, 21152.) As we explain in greater detail, an action challenging this determination must generally be brought within 30 days after the notice is filed. (§ 21167, subds. (b), (c) & (e).)

This case involves a particular kind of challenge following a notice of determination (NOD). If an NOD has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a))? We hold that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. This interpretation is consistent with the language of section 21167 and the general approach of all notice-based statutes of limitation. The Legislature clearly intended the 30-day statute to apply when an agency files an NOD, and this limitations period may not be extended based on the nature of the CEQA violation alleged.

Because the Court of Appeal reached a contrary conclusion, we reverse that judgment.

Slip op. at 1-2 (footnote omitted). The full opinion is available here.
Continue Reading Cal Supremes Opine On Statutes Of Limitation In CEQA Challenges

Environmental review, as one California municipality discovered, is a double-edged sword, even if the action the city undertakes is supposedly to protect the environment.

The opinion of the California Court of Appeal (Second District) in Save the Plastic Bag Coalition v. City of Manahattan Beach, No. B215788 (Jan. 27, 2010) isn’t all that earth-shattering in its holding: a city must undertake environmental review under CEQA when it passes an ordinance when there is substantial evidence supporting a fair argument that a project may have significant effect on the environment.

The facts of the case are what made this case interesting and worthy of notice, even though its subject matter is slightly off-topic for this blog. And, we must admit, the court’s holding resulted in a moment of frisson — a city ordinance banning plastic bags adopted for the avowed purpose of saving the environment was invalidated because the city…

Continue Reading Before Choosing Paper Or Plastic, You Need Environmental Review

The Federalist Societyhas posted a podcast of my Pacific Legal Foundation colleague Jim Burling discussing Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

If that doesn’t work for you, go here to download the mp3.

The Stop the Beach Renourishment case, which has been argued and is currently awaiting dispositionby the Supreme Court, asks whether a state court is constrained by theTakings and Due Process clauses from rewriting the common law rules ofproperty. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

Our summary of the oral arguments as well as links to the briefs are available on our resource page. A recent article summarizing the key amici arguments is posted here.

Also, a distant heads-up: the State and Local Government Law and the Real Property Sections will be presenting a major CLE…

Continue Reading Post-Argument Podcast On Florida Judicial Takings Case

Statelocalcover_1_2010_small The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, six authors of amici briefs in the case — including me — summarized their arguments. I focused on the “background principles” issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The “judicial takings” question in…

Continue Reading New Article On Florida Beach Judicial Takings Case

Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).

In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take “future accretion.” We summarized the opinion here. [Disclosure: we filed an amicus briefsupporting the property owners, available here.]

The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State’s Motion for Clarification is here.

The property owners assert the ICA’s conclusion that “future accretion” is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. …

Continue Reading Motions For Reconsideration In ICA Accretion Taking Appeal

Noparking Many years ago I got a parking ticket, my first. Here’s the story: when I left the car, it was a legal space, no meter. In the few hours I was away, the city public works department erected a “no parking” sign and painted the curb red. The police were equally efficient, and by the time I returned, I had a ticket for parking in a red zone.

I objected and the judge recognized injustice when he saw it.

Years later, the court was not so magnanimous. We represented a property owner held liable for “creating” an obstruction to navigation in San Francisco Bay in violation of the Rivers and Harbors Act of 1899. How did the owner “create” the obstruction, you ask? It refused to destroy those portions of its piers which extended beyond the harbor line.

Why would the owner put a pier beyond the harbor line? It…

Continue Reading New Cert Petition: Is Littoral Owner Trespassing When The Shoreline Erodes, Placing Lawful Structure In The Water?

No doubt about it, the biggest Hawaii-centric land use related story this year was the continuing saga of the Hawaii Superferry. The case resulted in above-the-fold headlines, blogs devoted to the issue, and at least two trips to the Hawaii Supreme Court. We even live blogged the oral arguments. A summary of the case is posted here.

It generated a huge amount of public interest and had all the elements to make a compelling case: environmentalists vs business, local vs mainlander, the governor and the legislature vs the judiciary, and Oahu vs at least two neighbor islands. A certain segment of Hawaii’s population had from the get-goconsidered the interisland vehicle ferry as nothing less than the DeathStar: a whale-killer, a transporter of invasive alien species, andharbinger of a militarized imperialist government. Others didn’t viewit so malignantly, just as a much needed and long overdue alternativeto interisland transportation, or as…

Continue Reading 2009 Land Use In Review: The Three Lessons From Hawaii Superferry

PICT0319 This post deals with the practical impacts of the Hawaii Intermediate Court of Appeals’ recent decision in Maunalua Bay Beach Ohana 28 v. State of Hawaii,No. 28175 (Dec. 30, 2009). [Disclosure: we filed an amicus brief supporting the property owners,available here.]

First, some background for those who have not been following our recent posts on the November 2009 oral arguments, and the decision.

In 2003, the Hawaii Legislature adopted Act 73 (codifed here and here),which declared that title to shoreline land naturally accretedcannot be registered by anyone except the State, and that only theState could quiet title to accreted lands. Most critically, the Actdeclared that all accretion not registered was State property.

A three judge ICA panel held that Act 73 took accreted land in existence when the Act was adopted. The ICA agreed with the trial court that the Act rewrote the common law…

Continue Reading Balkanizing The Beach: The Practical Consequences Of Maunaula Bay Beach Ohana 28

Waves Can the legislature adopt a law mandating that from here forward, upon an owner’s death, all of her property escheats to the State? Yes, according to the Hawaii Intermediate Court of Appeals. Because the property is not “vested” in future heirs and “may never materialize,” the State is free to take it.

That’s the basic rationale the 3-judge ICA panel adopted in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009), where the issue was not the right of descent and devise, but whether littoral property owners are entitled tocontinue to own accreted lands. In that case, the court held the legislature was not constrained by the takings clauses of the federal and state constitutions from simply assigning ownership of land which has not yet accreted from littoral property owners to the State. [Disclosure: we filed an amicus brief supporting the property owners, available

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Continue Reading Hawaii Court Of Appeals: Legislative Grab Of The Right To Beachfront Accretion Is Not A Taking