The Illusions of Takings Law
This post was originally published on Legal Planet. Reprinted with permission.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.
Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held that, because the government was authorizing an intrusion onto farmland, this was a taking of property that the government would have to pay for. Rick Frank wrote a great overview of the ruling's implications last week, but I want to dive deeper into a couple of points.
The Court's ruling seems simple enough …
On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred.
The Knick case presents the opportunity for the Court to decide whether or not to embrace a longstanding goal of property advocates: to overturn the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, which channels most takings lawsuits arising from local zoning and other similar land use disputes into state court. In my view, Williamson County was correctly decided, its essential premises have been repeatedly …
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.
On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. While no single storm event can be entirely attributed to climate change, Hurricane Sandy is precisely the kind of severe storm event that scientists predict will become more frequent in the era of climate change.
One issue raised by Hurricane Sandy — and the prospect of other, potentially even more severe storms in the future — is how to keep residents and businesses (and their occupants) out of harm’s way. This question in turn implicates …
Tarlock and Doremus are co-authors of Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics, published by Island Press in 2008.
Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts.
Usually, claims of ownership are made to recover a resource from someone else. But that's not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United …
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