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One of the very first things we addressed in the first year Property class (wonderfully taught by Allen Smith, visiting from Michigan Law) was the ownership of animals: when do wild animals become someone’s “property?” And the very first Latin phrase we incorporated into our new legal lexicon was ferae naturae, the law of wild animals.

In that vein, we introduce you to Ferae Naturae, a new law blog (to us, at least) on the law of animals, wild and otherwise. The blog is authored by our ABA State and Local Government Law colleague Amy Lavine, and although she posts on a wider scope of issues than the property law aspects of wild animals, it’s still an informative and worthwhile read.

Recent posts include “How to fight criminal charges when you get caught with a crocodile in your bathtub,” “Raccoons are not ‘cuddly…

Continue Reading New Law Blog To Follow: Ferae Naturae

In case you were not paying attention on this fine Thursday, here comes the Federal Circuit’s opinion in Mildenberger v. United States, No. 2010-5084 (June 30, 2011). It’s an interesting opinion because it deals with the mildly metaphysical question of when the six year statute of limitations for inverse condemnation claims against the federal government commences in cases where the taking and damage to the property is gradual, and nearly imperceptible.

In many cases, inverse condemnation claims are not like straight condemnation where the property owner knows when her property is being condemned, because in an inverse claim the owner doesn’t get served with a complaint, but instead must institute the suit after her property is taken or damaged, and it is often not clear when property has been taken or damaged to such an extent that a claim must be brought. The general rule is that a property…

Continue Reading Federal Circuit On The Metaphysics Of Takings Claim Accrual

We predicted the Supreme Court wasn’t finished with judicial takings or judicial takings-like issues after its decision (or, more accurately, non-decision) in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010). It looks like we might have more grist for the mill, because today, the Court agreed to review the Montana Supreme Court’s ruling in PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. 2010), a case we previewed here.

The issue in the case is who owns the land under certain Montana rivers. For more than 100 years, there wasn’t any doubt: the riverbeds were private property, or were federal property. The Montana Supreme Court concluded otherwise, and held that the state owns that property, and that PPL Montana, a power company, owed $50 million in rent. The (now former) property owner filed a cert petition, asking…

Continue Reading State Court’s Land Grab To Be Reviewed – Cert Granted In Montana Navigability Case

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in “Governor must insure wind farm moves forward,” where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can’t let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it’s so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to …

Continue Reading “Make Eminent Domain Imminent” – Fidell On Wind Power

5330213_big The ABA State & Local Government Law Section has just published a new book, Whose Drop Is It Anyway? Legal Issues Surrounding Our Nation’s Water Resources, edited by Megan Baroni. I just received my copy.

Skimming through the chapters, it looks worthy of a place on the bookshelf as a practical guide to a very wide range of issues related to water.

Here are the details:

Whose Drop Is It, Anyway? Legal Issues Surrounding Our Nation’s Water Resources, is a valuable resource and practical tool discussing the legal issues surrounding water resources and the current issues and trends that are influencing the legal regimes. Practical in use, this book can be used as a tool for developing effective water management strategies in your own jurisdictions.

As scarcity issues become more common and threats like global climate change loom with uncertainty over our water resources, water only stands to…

Continue Reading New Book On Water Law And Water Resources

As we predicted in a recent article, the Supreme Court’s latest takings decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010) has been “a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Adding to the growing list of scholary takes on the case — sorry, we could not resist the pun — is Georgetown lawprof J. Peter Byrne who has posted Stop the Stop the Beach Plurality!, a forthcoming article to be published by the Ecology Law Quarterly.

Comparing Stop the Beach Renourishment to Bush v. Gore, the article — the tone of which is worthy of a Scalia dissent and is entertaining reading even if you don’t buy his analysis — makes no effort to hide his disdain for the plurality opinion. Professor…

Continue Reading Article: “Plainly, the plurality’s textual argument is so much lipstick on a pig.” (Don’t Hold Back – Tell Us What You Really Think About Stop The Beach Renourishment)

Beginning at 9:00 a.m. Central Time today, the Texas Supreme Court heard oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. In March, the court agreed to rehear the case.

Launch the archived video feed in a separate window by clicking this link, then follow the live blog archive below, where we added our thoughts and background. Our Damon Key colleague Rebecca Copeland provided Texas background (she practiced in the Texas appeals courts before joining our firm, so knows what “writ ref’d n.r.e.” means).

Background on the case, including the briefs the the court’s original opinion, are posted here.

Continue Reading Live Blog of Texas Supreme Court Argument In Severance (Beach “Rolling Easement” Case)

On Tuesday, April 19, 2011 starting at 9:00 a.m. Central Time, the Texas Supreme Court will hear oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. Thus, the public does not gain an easement over private property upon sudden changes in the shoreline. In March, the court agreed to rehear the case. [Disclosure: my colleagues at Pacific Legal Foundation represent the property owner.]

St. Mary’s law school will be live streaming the arguments here.

Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn’t the veg line, but rather the upper reaches of the high wash of the waves, as evidenced by the…

Continue Reading Argument Preview: Texas Supreme Court To Hear Arguments In Severance – Private Beaches, “Rolling” Easements

On a day that our attention is elsewhere, comes this important notice: the Texas Supreme Court has granted the State’s motion for rehearing in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription.Thus, the public does not gain an easement over private property upon sudden changes in the shoreline.

The case is once again set for oral argument, on April 19, 2011 at 9:00 a.m.

Thanks to our colleagues at the ABA State & Local Government Law Section for the heads-up, and to How Appealing for the links to the order.

More about the case here (the Texas Supreme Court’s decision on certified questions from the Fifth Circuit), and here (the Fifth Circuit’s earlier opinion holding that the owner’s claim for an illegal Fourth Amendment seizure…

Continue Reading Private Beaches, “Rolling” Easements – Texas Supreme Court To Rehear Severance

This just in: the U.S. Court of Appeals for the Federal Circuit has issued an opinion in Klamath Irrigation District v. United States, No. 2007-5115 (Feb. 17, 2010), a case we’ve been watching.

I’m at the ALI-ABA conference on eminent domain in Coral Gables, Florida, so won’t have the chance to digest and summarize the rather longish opinions (34 page majority, 8 page concurring) for a few days, but I wanted to get it out so blog readers could review it while I’m tied up teaching at the conference.

The Federal Circuit vacated the Court of Federal Claims’ dismissal of the plaintiffs’ takings and breach of contract claims. It sent the case back to the CFC to allow the plaintiffs the opportunity to prove they possess water rights under Oregon law. The CFC had concluded that they did not, but on appeal, since whether an owner possesses Fifth Amendment…

Continue Reading Federal Circuit: Water Rights, Once Proven, Are Fifth Amendment “Property”