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Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here’s the short version:

In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A…

Continue Reading CFC: Katrina Flooding Is A Taking

Here’s the trial court’s opinion in one of the Jersey Shore “dune replenishment” cases we’ve been following.

These are the cases in which owners of beachfront property (or in one case, a municipality itself) objected to the state and local governments summarily taking easements on private property to be used to armor the shoreline against future hurricane damage. In response to Sandy, the federal government threw $3.461 billion at the shoreline in New Jersey and other states damaged by the hurricane, and as part of the package, the state and local governments were tasked with being “responsible for the rapid acquisition of property” needed.

As we posted earlier, the main issue in the cases is whether the government can take easements on private property by simply declaring that it has done so, without first condemning the easements under New Jersey’s eminent domain statutes. This was an “emergency” …

Continue Reading NJ Court: There’s No Substitute For The Eminent Domain Process, Even On The Shore, Even In An “Emergency”

The people of Margate City, New Jersey, voted to say “no thank you” to building dunes on the beach to limit damage in the event of another hurricane like Sandy were to hit.

But the State of New Jersey decided to do it anyway, and issued an administrative order “taking” an easement. Problem is, the State didn’t bother to actually go through the trouble of condemning the easement. Instead, “Bob Martin, Commissioner of the New Jersey Department of Environmental Protection,” declared:

1. The New Jersey Department of Environmental Protection Office of Floor [we assume that was meant to be “Flood”] Hazard Risk Reduction Measures hereby immediately enters upon and takes real property interest(s).

Just like that.

The City didn’t appreciate having its beach summarily taken, and filed a complaint in federal court against the Corps of Engineers and the state, and even got a TRO temporarily halting …

Continue Reading Summary Takings, Eminent Domain, And Due Process At The Jersey Shore

Back in February, we blogged about an opinion from the Maine Supreme Court involving littoral property (that’s beachfront property to all you non-lawyers and Navy people), in which the court concluded that those who were asserting a prescriptive easement over the plaintiffs’ beachfront property– the Town  and several neighbors — had not rebutted Maine’s presumption of permissive recreational use of open land, when they introduced evidence that people generally made recreational use of the beach in front of the plaintiffs’ properties, without showing specifically where. Which meant that the public did not have a right of access over the plaintiffs’ beachfront land. The court also held that Maine does not recognize an “easement by custom.” 

Maine apparently allows a party who is disappointed with the court’s ruling to ask for reargument. Similar rules for reconsideration also are present in other courts, but with rare exception in our experience, those…

Continue Reading Maine: On Second Thought, We Were Right When We Said That Beach Property Is Not Subject To Special Rules

Here’s the Verified Complaint in a case recently filed in U.S. District Court in New Jersey:

Plaintiffs Jenkinson’s Pavilion, a corporation of the State of New Jersey and Jenkinson’s South, Inc., a corporation of the State of New Jersey, (collectively “Plaintiffs”), bring this action, inter alia, (a) for a declaration as a matter of law that the United States Army Corps of Engineers (“USACOE”) has not required, and does not require, for purposes of the “Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project,” the acquisition of perpetual rights in privateproperty for purposes of establishing recreational public beaches landward of the area already subject to public ownership and rights of public user pursuant to the New Jersey Public Trust Doctrine, and (b) enjoining the Defendants from taking actions in furtherance of the “Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project,” in advance of a determination on the relief…

Continue Reading Federal Court Challenge To NJ’s Beach Replenishment Plan

Here’s the Brief in Opposition filed by the city Kentner v. City of Sanibel, No. 14-404, the case asking the Supreme Court to review an 11th Circuit decision in which the court concluded that riparian rights, although recognized by Florida as property rights, are not “fundamental rights” protected by the Due Process Clause. The court concluded that the City’s ban on the construction of docks and piers (except, apparently, city-owned docks and piers) was not subject to due process review because the plaintiffs’ riparian rights are not fundamental rights because they are merely “state-created” rights. 

The property owners filed a cert petition, and we joined an amicus brief in support. Quite naturally, the BIO doesn’t agree with our view of the issues, and phrases the Questions Presented this way:  

(1) Whether a riparian landowner’s “qualified” right to construct a dock on adjoining state-owned submerged lands is a “fundamental&rdquo…

Continue Reading BIO In Riparian Rights Due Process Case

We’re tied up today and don’t have time to do any analysis, so we post this without comment: Bowman v. California Coastal Comm’n, No. B243015 (Oct. 23, 2014), wherein the court held:

In Kleiniecke v. Montecito Water District (1983) 147 Cal.App.3d 240, we held it would not be inequitable to apply the doctrine of estoppel as a defense to the statute of limitations. Here we conclude it would be inequitable to apply collateral estoppel to require a party to dedicate a coastal easement as a condition of obtaining a coastal development permit.

We reverse a judgment denying a property owner’s petition for a writ of administrative mandate to eliminate a public access condition from a coastal development permit.

Slip op. at 1  

Bowman v. California Coastal Comm’n, No. B243015 (Cal. App. Oct. 23, 2014)

Continue Reading Cal App: “There is no rational nexus, no less rough proportionality”

Ducks

Here’s what we’re reading on this blustery Friday:

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Continue Reading Friday Links: Duck Gets Eminent Domain Power, A Small Piece Of New York City … And More

We usually don’t pay a whole lot of attention to unpublished opinions. Not that they are not interesting mind you, but if the court itself, for whatever reason doesn’t believe the case is worthy of publication, then who are we to say otherwise? But occasionally, we read one that has something worth sharing. Like this case, for example.

In Dagres v. County of Hawaii Planning Dep’t, No. CAAP-11- 0000071 (June 30, 2014), the Hawaii Intermediate Court of Appeals gave us one of those blogworthy tidbits, a short (one page) discussion of the appellant’s judicial takings claim. We don’t see many of those, so we had to follow up. 

The case involved three buildings near the shoreline on the Big Island. The owner wanted to fix them up, and the Planning Department concluded that two of the buildings were exempt from the requirement to obtain a Special Management Area use…

Continue Reading A Hint Of Judicial Takings From The HAWICA