Water rights | Public trust

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Check out United States v. 32.42 Acres of Land, No. 10-56568 (9th Cir. June 14, 2012), the case in which the Ninth Circuit held that a federal taking of state land (for a Navy base in San Diego) extinguishes the state’s tidelands public trust, even if the property is later conveyed to a private party. California argued that the state’s public trust lay dormant while the feds held the property, but was “quiescent” and would “re-emerge” upon any transfer from the U.S. to a private party.

We won’t go through the facts of the case (the opinion is short, and an interesting read), but here’s the short story: the feds condemned state-owned land, which was subject to California’s common law public tidelands trust because it was under water at the time of California’s admission to the Union. The state argued that its public trust rights would essentially lie dorman…

Continue Reading 9th Circuit: Federal Eminent Domain Power Trumps Equal Footing Doctrine

Watch this case: it is likely to be a landmark in Hawaii water law.

Hawaii water law cases tend to be vast adventures in history, culture, irreconcilable arguments, and oddball doctrines (e.g., appurtenant water rights are keyed to the amount of taro under cultivation at the time of the 1848 Mahele), and the appeal to be heard by the Hawaii Supreme Court on Wednesday, June 6, 2012, starting at 9:00 a.m., appears to be no different. It seems to have something for everyone: appellate jurisdiction, administrative law (the old metaphysical question of what is a “contested case”), instream flow standards, Native Hawaiian rights, and the public trust in water resources.

Here’s the description of In re `Iao Ground Water Management Area High-Level Source Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe`e River and Waiehu, `Iao, and Waikapu Streams Contested Case Hearing…

Continue Reading HAWSCT Oral Arguments: The Next Big Hawaii Water Case

In a per curiam unpublished decision, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s dismissal in Crystal Dunes Owners Ass’n v. City of Destin, No. 2011-14595 (Apr. 17, 2012) (per curiam opinion here, or below).

The plaintiffs own a strip of private beach in Destin, Florida. If the name of that locale sounds familiar, it’s because its the site of the Supreme Court’s recent decision in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, in which the Court declined to confirm the existence of a “judicial takings” theory of recovery where the plaintiffs claimed the Florida Supreme Court changed the rules midstream and took their property as a consequence.

The latest case does not involve a claim of judicial takings, but has its genesis in the property owners’ beef with other branches of government, the city and the sheriff’s department.

Continue Reading 11th Cir: Property Owners Should Use Self-Help To Evict Private Beach Trespassers (Because Florida Self-Help Laws Always Work Out So Well)

There’s a feature story in today’s Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short…

Continue Reading Trickle-Down Regulation: Environmental Maze Becomes “Stumbling Block” For The Little Guys

In case you are working today (we are), here’s some light reading to distract you:

Continue Reading Saturday Round Up

This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because “the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that … regulation is too restrictive of Day’s groundwater right and without justification in the overall regulatory scheme.” Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I’m liking the Texas Supreme Court these days.

We’re getting a brief ready for filing today, so I haven’t…

Continue Reading Texas: “The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”

In our law review article on Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 103 S. Ct. 2592 (2010), we predicted that “the fractured opinions in the case will be a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010).

It looks like our prediction is (thankfully) being borne out: earlier this week we posted a new article from the Stanford Law Review (here), and now comes another scholarly piece on the judicial takings issue, this time from the Cornell Law Review: Eduardo M. Penalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305 (2012) (pdf available here). Here’s the summary:

In Stop the Beach…

Continue Reading New Article: Judicial Takings or Due Process? (Cornell Law Review)

At yesterday’s Hawaii Water Law Conference, several presenters discussed what is known as the “East Maui water case” (that is easier to say than “In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams“), which was up before the Hawaii Supreme Court on a certiorari application after the Intermediate Court of Appeals dismissed the case for lack of appellate jurisdiction. The Water Commission denied the petitioner’s request for a contested case, and the ICA dismissed the appeal from the Water Commssion because under the Hawaii Admistraitve Procedures Act, there was no final order from which the petitioners could appeal.

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA’s dismissal…

Continue Reading HAWSCT: Appellate Jurisdiction Triggered By Signed Water Commission Minutes

Yesterday, the Supreme Court heard oral arguments in Sackett v. EPA, No. 10-1062 (transcript here). We were going to write up our thoughts, but minds immeasurably better than ours beat us to it. Concensus seems to be that the EPA is going to get smacked, but we can’t tell yet how hard. Our review of the transcript leads us to the same conclusion, but we’ve learned never to count chickens before their anticipated hatch date, so will reserve judgment.

  • SCOTUSblog: A weak defense of EPA – “With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.”

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Continue Reading Sackett v. EPA Oral Argument Round Up

12.WATHIThere is still time to join us for the upcoming Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we’ve assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and…

Continue Reading Hawaii Water Law Conference (Jan. 11, 2012)