Water rights | Public trust

Subscribe to Water rights | Public trust via RSS

Join us on Friday, January 11, 2013 at 1:30 p.m. Eastern (12:30 CT, 11:30 a.m. MT, 10:30 a.m. PT, 7:30 a.m. HT) for “Thinking Out Loud – Property Rights After Natural Disasters,” a free teleconference presented by the Condemnation Zoning and Land Use Committee of the ABA’s Litigation Section. There’s no cost to register, and you do not need to be an ABA or Litigation Section member to participate.

Here’s the program description:

Over one-half of the people in the United States live within 50 miles of the coastline. Hurricanes and similar types of natural disasters have caused billions of dollars in damage in recent years, particularly in coastal communities, and some scientists warn that global warming and rising sea levels will increase the frequency or severity of these types of natural disasters. Private property rights in the wake of natural disasters are an important issue not…

Continue Reading Free Teleseminar: Property Rights After Natural Disasters

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. 

++++++++++++++++++++++++++++++++++

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

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

…
Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

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

Here are some initial reports of today’s unanimous Supreme Court decision in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), which held that government induced flooding could be a taking, even if the inundation of the land is temporary. We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. 

    • Gideon Kanner: “Anyway, the unanimous 8-0 decision of today comes down basically on the side of common sense and holds that the destruction of the state’s timber by the feds’ “temporary”  floodings was

    …
    Continue Reading SCOTUS Flood Takings Case Round-Up

    This just in: the Supreme Court has issued a unanimous opinion (authored by Justice Ginsburg) in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), holding that government induced flooding is a taking, even if temporary.

    The Court roundly rejected the Federal Circuit’s conclusion that flooding caused by the Corps of Engineers water releases from a dam did not result in a taking because it eventually stopped which “at most created tort liablity.”

    We filed an amicus brief in the case supporting the property owner/petitioner, which argues that as long as the water releases by the Corps “directly and substantially” resulted in damage to petitioner’s property (the G&F Commission is seeking compensation only for the loss of its trees), it’s a taking for which just compensation is required. Our brief pointed out a somewhat obscure case that sets forth this test (National Bd. of …

    Continue Reading Unanimous SCOTUS: Temporary Flooding Could Be A Taking

    Guess what? The Water Commission got it wrong again. The Hawaii Intermediate Court of Appeals held in this unpublished memorandum order that the Commission must hold a “contested case” hearing upon demand when the Commission sets “interim instream flow standards” under the Water Code (in other words, how much water should be allocated to whom and where for particular streams).

    The dispute in this appeal was whether the process to establish those standards is about setting policy — meaning the Commission need only hold a legislative-type public hearing — or determined particular parties’ rights — in which case a trial-like contested case is required. The ICA concluded it was the latter.  There are three instances when an agency must hold an adjudicatory hearing: when required by the agency’s own rules, when required by a statute, or when required by due process because the party asking for a contested case has…

    Continue Reading HAWICA: Water Commission Needs To Conduct Constested Case When Amending Instream Flow Standards

    Water is aprecious resource said to be held in the “public trust.”  The Hawaii Constitution provides that “theState has an obligation to protect, control and regulate the use of Hawaii’swater resources for the benefit of its people.”   To this end, the State evaluates andregulates the use of these resources through its Commission of Water ResourceManagement.  Often landowners and usershave competing needs to the same water source, particularly when the lands arebeing used for agriculture.  The Commissionmust balance these needs with those of the environment and ecosystem and, attimes, with the needs of those entitled to traditional and customary practicesinvolving or using the water resource.

    The HawaiiSupreme Court recently took issue with a decision by the Commission on how tomarshal certain water resources, in that case a system of streams.  The case illustrates the difficulties indevising plans to account for these competing interests and what must be consideredin making that plan. …

    Continue Reading Guest Post: Hawaii Supreme Court’s Latest Water Law Ruling