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In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a “blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation.” The servitude gives the public a right of access to waters that intheir natural condition are actually navigable, and absolves thefederal government from liability for compensation when land subject tothe servitude is taken or damaged, the the theory being that navigablewaters are not part of a riparian or littoral owner’s “bundle ofrights” —  

The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See…

Continue Reading Navigational Servitude May Not Be A “Blanket Exception” To The Takings Clause…But It’s Still A Big One

From The Destin Log, the hometown newspaper from the location of the U.S. Supreme Court case on judicial takings and beachfront land (Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)), comes the report “Destin may be Sotomayor’s first test: Analysts think new justice would vote against private property owners in beach restoration case.”

A new face on the Supreme Court may help settle an old but simmering issue that has divided Destin for years.

With the city about to become ground zero for beach restorationbattles nationwide, The Log contacted legal experts and lobbyist groupsto ask where Sonia Sotomayor would stand on the case and whether hernomination could swing the decision.

Robert Thomas, a land use and appellate lawyer based in Honolulu,Hawaii, said when the Destin beach restoration case goes before thehigh court sometime this winter, it will…

Continue Reading Report: Beachfront Takings Case May Be Sotomayor’s First Test

We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here’s a sampling, followed by some thoughts:

  • She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
  • Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President  Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of

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Continue Reading Do Judges “Make” Law? The Sotomayor Nomination And The Beachfront Takings Case

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.). Still, on the day we celebrate independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking. So lawyers can’t be all that bad, right?

As convincingly argued by historian Peter Charles Hoffer in his book The Law’s Conscience: Equitable Constitutionalism in America (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit. There’s the introduction and “whereas” section (why we’re doing this); the bill of particulars…

Continue Reading The Verified Complaint In Equity: The Declaration Of Independence

In What’s At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of “judicial takings” case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.Continue Reading PropertyProf’s Summary Of The SCOTUS Beachfront Takings Case

The U.S. Supreme Court last week agreed to review the Florida Supreme Court’s decision in Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), which heldthat a state statute prohibiting “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. See Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petitionrelied on two rather notorious cases with Hawaii origins to support theconclusion that a decision by a state court which unexpectedly changesestablished state common law rules of property is a compensable taking.See Pet. at 31-32 (citing Robinson v. Ariyoshi…

Continue Reading On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment

It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG’s office has sought and received two extensions of time and the cert petition is now due by July 17, 2009.

In Casitas, the Federal Circuit held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout. The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback. The character of the government action was a physical diversionfor public use — the protection of an endangered species.” The Federal Circuit’s opinion is posted here, and the court’s denial…

Continue Reading Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.
  • The Hawaii State Planning Act,

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Continue Reading Materials And Links From Today’s Water Law Seminar

There’s still time to register for the upcoming seminar “Integrating Water Law and Land Use Planning,” being held in Honolulu at the Ala Moana Hotel on Thursday, May 14, 2009 from 9am – 4:30pm.  I’ll be leading the session on “Water Rights, Property Rights and the Law of Settled Expectations,” and my Damon Key colleage Christi-Anne Kudo Chock is handling “Hawaiian Water Rights – Where Culture and the Law Merge.”

Also on the faculty are Lenore Nakama Ohye, a hydrologic planning program manager for the State of Hawaii Commission on Water Resource Management; Lawrence E. Beck, P.E., from the County of Hawaii Department of Water Supply; and Lawrence Miike, M.D., a Commissioner on the Water Commission.  Seminar details, including a complete agenda and registration information, are posted here.Continue Reading Upcoming Water Law Seminar – Integrating Water Law and Land Use Planning

Several diverse items, for your consideration:

  • Columnist George Will opines about the Empress Casino Joliet case — the one where the Illinois Supreme Court held that aregulation imposing a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property.  The U.S. Supreme Court has been asked to review the case. We discussed it here and here (cert petition and amicus briefs included).
  • The ABA Journal writes about George Will opining on the Empress Casino Joliet case.

Continue Reading Monday Round-Up