On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project’s dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water.
The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps’ decision on August 27 and on the following days, to release up to 13,000 cubic feet per second from the project dams, which arguably contributed to the flooding of both downstream and upstream properties, left everyone unhappy. Read the rest of this entry »
On June 17, 2016, the Texas Supreme Court issued a decision in Harris County Flood Control District v. Kerr, available here, http://www.txcourts.gov/supreme/orders-opinions/2016/june/june-17,-2016.aspx, which should be of great interest to all those who follow major developments in takings doctrine.
The Texas Supreme Court, by a vote of 5-4, rejected a takings claim based on the theory that Harris County should be held liable for property damage allegedly caused by the county’s prior approval of upstream development without adequate flood mitigation. The headline is that the Court’s recent decision supersedes the Court’s prior decision in this case, issued on June 12, 2015, http://www.txcourts.gov/media/996484/130303.pdf, supporting, again by a 5 to 4 vote, the plaintiffs’ takings theory. The change in outcome was explained by Justice Eva Guzman’s decision, in response to an application for rehearing, to switch her vote. Read the rest of this entry »
The U.S. Supreme Court issued its decision today in Horne v. Department of Agriculture, reversing the Ninth Circuit and ruling that the Hornes are not subject to monetary fines for violating the Department’s raisin marketing order. The fines were invalid, the Court ruled, because compliance with the marketing order would have resulted in a taking of private property without compensation under the Takings Clause. The Court split along depressingly predictable partisan lines, with four justices (you know who they are) joining an opinion for the Court written by Chief Justice John Roberts, and four other justices (you know who they are) dissenting in whole or in part. Many people will have interesting things to say about this case, which will deserve continued study, but here is a brief recap and a few initial observations. Read the rest of this entry »
Ever since the cert. grant in Horne v Department of Agriculture in January, plus teaching responsibilities, plus a bunch of other things, I have been delinquent in keeping this blog up to date. With the Horne argument before the U.S. Supreme Court yesterday and my last class today, I feel liberated. I’ll have some observations on the oral argument in Horne tomorrow. But first, some accounting of what I have been up to:
I filed this amicus brief on behalf of the International Municipal Lawyers Association in the Supreme Court in Horne.
Thirteen briefs were filed in support of the Petitioners, and the second brief in support of the Respondent was filed by Sun-Maid Growers of California. So, at a minmum, the IMLA brief offers the Court a unique perspective.
Here is a new article on Koontz, “The Costs of Koontz,” which will be published in the Vermont Law Review, 39 Vt. L. Rev. 573 (2015). The purpose of the article is to lay out as plainly as I can the costs of Koontz in terms of (1) increased incoherence of takings doctrine, (2) impairment of separation of powers, (3) undermining of federalism values, and (4) lost effectiveness and efficiency of land protection and management.
It is a follow up to “Koontz: The Very Worst Takings Decision Ever?” published in the NYU Environmental Law Review.
Finally, this piece was just published by the Harvard Law Review Forum as a Response to an Essay by Professor Tom Merrill published in the Harvard Law Review, “Eschewing Anticipatory Remedies for Takings: A Response to Professor Merrill,” responding to “Anticipatory Remedies for Takings,” 128 Harv. L. Rev. 1630 (2015).
Today the U.S. Supreme Court granted a petition for certiorari in the takings case of Horne v. Department of Agriculture. As followers of this blog may recall, the U.S. Supreme Court has already been around once in this case.
The issues as presented in the cert petition are as follows: “(1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.”
Stay tuned. More to follow.
The recent decision by the federal District Court for the Eastern District of North Carolina in the case of Town of Nags Head v. Toloczko, provides some insight into the potential obstacles presented by the Takings Clause to the use of nuisance-abatement ordinances to effect orderly retreat from eroding shores in the era of climate change.
In November 2009, a powerful storm hit Nags Head, North Carolina, including the Toloczkos’ beachfront cottage. The storm caused considerable damage to the property, including leaving the septic system exposed. In addition, while erosion had been a chronic problem for the Toloczkos, the 2009 storm substantially eroded the remaining beach in front of their property, leaving the cottage on the dry sand portion of the beach.
The Town declared the cottage a “nuisance” under a local ordinance which defined a storm- or erosion-damaged coastal structure a “public nuisance” when (1) the structure is “in danger of collapsing,” (2) the damaged structure or debris creates a “likelihood of personal or property damage,” or (3) the structure or debris “is located in whole or in part in a public trust area or public land.” In response to the Town’s request, the Toloczkos declined to remove the damaged cottage. Citing the second and third provisions of the ordinance, the Town filed suit seeking to abate the nuisance and penalties for failure to comply with the removal order. (Subsequently, following completion of a beach renourishment project, the Town concluded that the cottage could safely remain in place but continued to pursue recovery of civil penalties.) The Toloczkos filed counterclaims alleging, among other things, a taking of their property. Read the rest of this entry »
Can government inaction – as opposed to affirmative government action – give rise to takings liability? A recent decision by the Wisconsin Court of Appeals, in Fromm v. Village of Lake Denton, is the latest decision to embrace the general understanding that a government failure to act cannot support a viable claim under the Takings Clause. Read the rest of this entry »
In the case of Dunn v. City of Milwaukie, the Oregon Supreme Court recently issued a valuable decision addressing the standards for when government can be held liable for a taking due to physical invasion of private property (at least under the Oregon Takings Clause, though the decision relies in part on federal precedent).
The case arose (hold your nose) when the city’s use of high-pressure “hydrocleaning” to wash the public sewer system caused sewage to back up and spill into the plaintiff’s house through toilets and other bathroom fixtures. A jury found for the plaintiff and awarded compensation, and the award was affirmed by the Oregon Court of Appeals. The Oregon Supreme Court has now reversed. Read on …
The Supreme Court’s takings decisions last term in Horne and Koontz have each generated considerable debate and consternation. Now, the Ninth Circuit has issued a new ruling in Horne on remand that relies heavily on the analysis in Koontz to resolve the Hornes’ claim. The Ninth Circuit handed the government a win, ruling that the Hornes failed to demonstrate a taking due to the Secretary of Agriculture’s assessment of penalties against them for declining to “reserve” a portion of their raisin crop in accordance with the Agricultural Marketing Agreement Act of 1937. Unfortunately, the Ninth Circuit’s legal analysis is an impenetrable tangle, largely because the Supreme Court itself has been so confusing, and the long-term implications of the Ninth Circuit’s decision are both unpredictable and troubling. Read on …