Vested rights

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The Supreme Court’s multiple opinions in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court’s decison was not a judicial taking, were not the last words on the subject. Six justices concluded that in the right circumstances, a decision by a state supreme court would violate the takings or due process clauses, while the remaining two justices concluded that some future case might be the right vehicle to decide whether a court decision could take property.  

Our suspicions that the case marked the opening of the judicial takings canon and not its closing were quickly confirmed. Last week, we posted this cert petition in another beach case from Hawaii that draws the takings question more precisely than Stop the Beach Renourishment, and earlier we asked “Why Isn’t This A ‘Judicial Taking?’…

Continue Reading New Cert Petition: More Judicial Takings, This Time From Montana

The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that “Act 73” (codifed here and here), the statute in which the legislature simply redefined accretion as public propertywas a taking, but accepted the State’s argument that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest.

In Act 73, the Hawaii Legislature changed over a century of common law and declared that title to shoreline land naturally accreted cannot…

Continue Reading Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A “Property” Interest?

Worth listening: this LexisNexis podcast. Details:

On this edition, Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law at the Levin College of Law, University of Florida, discusses what real estate practitioners can learn from the U.S. Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida DEP and what it suggests about policies affecting the Oil Spill in the Gulf of Mexico. Topics include avulsion, accretion, and the possibility of “judicial taking.”

Continue Reading Podcast On The Judicial Takings Case (Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envt’l Protection)

You may have missed the live program, but it’s still not too late to get the podcast of a recent discussion of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the Supreme Court case about judicial takings and beachfront property. Here’s the course description from ALI-ABA:

In an unusual takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Florida Supreme Court relied on state real property law to conclude that the objecting beachfront property owners lacked a valid property right, and thus the state could “renourish” the beaches. The beachfront owners appealed to the U.S. Supreme Court, asking it to recognize a new doctrine of judicial takings.

On June 17, 2010, the Supreme Court issued its opinion, which may be a partial victory for property-rights advocates. Chief Justice Roberts, and Justices Scalia, Thomas, and Alito all endorsed the idea that…

Continue Reading Another Podcast On The Judicial Takings Case (Stop The Beach Renourishment v. Florida)

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

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 such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

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 such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

This Friday, August 6, 2010 from 2:30 – 4:00 p.m. as part of the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of what was, in my opinion, the most fascinating case of the Supreme Court’s recently-concluded term, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

This Term, the Court dealt with corporate speech, guns, “crush videos,” process patents, and Sarbanes-Oxley, but in Stop the Beach Renourishment, the Court attempted to tackle the most metaphysical of questions: can a state supreme court decision “take” property by changing the law? In the case, the Court came tantalizingly close to holding that a state supreme court decision can run afoul of the Fifth Amendment’s Takings Clause and take property without just compensation. The Court concluded that the Florida Supreme Court’s…

Continue Reading Upcoming ABA Panel On The Judicial Takings Case (San Francisco 8/6/2010)

Update: The court issued its opinion this morning.

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Is there anyone who can resist, when something Nantucket-related (mostly SFW) comes up, to launch into a limerick? We sure couldn’t.

But we will spare you our bad poetry this time, and instead focus on an appeal now under consideration by the Supreme Judicial Court of Massachusetts that is similar to a case now under consideration by the Hawaii Intermediate Court of Appeals. Both involve Torrens-titled property and claims of “public trust.” The timing is fortuitous — but coincidental — since Massachusetts and Hawaii are two of the last states to retain “Land Court” (Torrens) registration systems. What are the chances that two cases with similar issues are making their way up the chain?

In Arno v. Commonwealth of Massachusetts, No. SJC-10559 (argued Mar. 24, 2010), the SJC is considering whether property on Nantucket is subject…

Continue Reading There Once Was Some Land In Nantucket … Mass SJC Considering Public Trust And Torrens Title Case

More on the “judicial takings” case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

Remember that at the ABA Annual Meeting next month in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of the case. I’ll be moderating, and Jim Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California Boalt Hall Law School), and Dan Stengle, (Hopping Green & Sams, Petitioner’s counsel) are on the panel. If you are coming to the meeting, mark your calendar for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. More information here.

Anyway, here are the links:

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Continue Reading More On The “Judicial Takings” Case (Stop The Beach Renourishment)

The State of Hawaii has filed a brief responding to the amicus brief we filed in June in In re Trustees Under the Will of the Estate of James Campbell, No. 30006, an appeal now under review by the Hawaii Intermediate Court of Appeals. The issues in the case include the nature of “Torrens” title and the scope of the “public trust” in water resources.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register. In Campbell, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State’s ownership of “all…

Continue Reading Final Brief In Torrens Title And Public Trust Appeal