All posts tagged 'public trust doctrine'

Rising Sea Levels and Prohibited "Takings" - A Different Sort of Climate Change Litigation

November 18, 2014 21:39
by J. Wylie Donald
  A little noted anniversary passed this past week.  The odd 2009 storm, Nor’Ida (the progeny of a nor’easter and a hurricane), swept along the east coast pounding some areas with record storm surge five years ago in the second week of November.  Who is keeping Nor’Ida’s memory alive?  Among others, homeowners in Nags Head, North Carolina have especially good memories, as shown by their long-running litigation, Sansotta v. Town of Nag's Head.  They have been in state court, federal district court, the Fourth Circuit and on November 6 (one week short of the fifth anniversary of Nor’Ida) won an important battle in the Eastern District of North Carolina.  (The decision is attached below.)  Whether that is the end of the saga is anybody’s guess.  Or at least must be measured by how long the taxpayers want to keep paying their lawyers.   We blogged the prelude to the most recent decision a year ago last August.  Homeowners (perhaps beachfront cottage-owners is a better term) had challenged the Town of Nags Head, which had labeled certain beachfront homes nuisances because they obstructed emergency response and were in disrepair from Nor’Ida.  The plaintiffs asserted various constitutional claims (equal protection, due process, prohibited takings).  The Fourth Circuit rejected all the claims except the takings claim, which should have been allowed to proceed.   We pick up now from the Fourth Circuit’s ruling   Notwithstanding the loss of two theories of recovery, the case was hardly simple when it showed up before Chief Judge James Dever III on dueling motions for summary judgment. Plaintiffs asserted 14 causes of action, the Town responded with four counterclaims.  A few pieces of background are important. Nor'Ida (referred to by the Court as the November Storm) was anticipated and the homeowners took steps to preserve their properties with various earthmoving activities, but the Town ordered the work to stop when the access road washed out. Following the storm and accompanying damage the Town declared the properties nuisances, pursuant to a town ordinance.  The ordinance at issue provided as follows:    [t]he existence of any of the following conditions associated with storm-damaged or erosion-damaged structures or their resultant debris shall constitute a public nuisance. (a) ... (b) Damaged structure or debris from damaged structures where it can reasonably be determined that there is a likelihood of personal or property injury; (c) Any structure, regardless of condition, or any debris from damaged structure which is located in whole or in part in a public trust area or public land.   The Town invoked both provisions (b) and (c).   The public trust provision ((c)) was the most straightforward to enforce for the Town. Either the cottages were located in the public trust, or they were not. Further, if a property was in the public trust, it could not be issued a building permit for repair. Unfortunately for the Town, much of Judge Dever's work had already been accomplished when the North Carolina Court of Appeals ruled that public trust rights could only be enforced by the Attorney General. See Town of Nags Head v. Cherry, Inc., 723 S.E.2d 156, 160-61 (2012). Accordingly, the Town's nuisance ordinance relying on the doctrine was invalid.  Other claims of violations of due process, of negligent enforcement, for declaratory judgment, etc. were easily addressed as well (and won’t be discussed here).   That left the causes of action relying on the provision of the ordinance that forbade decrepit properties. Here, however, the Town had materially interfered with the homeowners' ability to repair their properties. And that, held the Court, constituted a prohibited taking, even if it were only a temporary prohibition.  Thus, even if the homes became nuisances during the storm, they did not have to continue that way because they would have been repaired in the normal course. In that case, “No rational jury could find that such use [repairing a beachfront cottage for use] constitutes a nuisance under the background principles of North Carolina common law.”  Sansotta at 26. Nevertheless, the Court also found merit in the Town's opposition to the plaintiffs' motion and denied both sides summary judgment on the temporary regulatory takings topic.   Takings scholars will undoubtedly find much to discuss in the Court's extensive discussion. We take a different focus and consider the decision in the context of rising sea level litigation, a different sort of climate change litigation from the liability suits we have frequently discussed. First, only those with their head in the sand refuse to acknowledge the rise of the oceans, and the increased acceleration of that rise. Government inevitably is going to have to take steps. The question will be:  when?  Must a municipality declare a nuisance only when the nuisance is overt and uncontroverted?  Or can the nuisance be anticipated and steps taken before the storm surge has wiped a slab slick, and distributed debris throughout the municipality. The Court suggests that proactive steps are possible, but they must be lawful:  “the Owners rightly expected that the Town would not attempt to accelerate that process [where erosion made it such that cottages could not legally or practically be repaired] through its unauthorized assertion of the public trust doctrine.” Sansotta at 27.  But the Court offers no insight on what accelerative steps might be approved.  That will be another topic for scholars.   Second, condemnation of beachfront cottages as nuisances may be extremely detrimental to the owners of the cottages, but it is a delightful windfall to those one lot inland.  Those lucky homeowners now own beachfront property (or at least unobstructed beach view property).  The Court acknowledged as much:  “the result would not have been a mere adjustment of the benefits and burdens of economic life.  Rather, the result would have been an outright transfer of wealth from the Owners to the beachgoing public and to those who own the would-be oceanfront cottages behind the Owners’ Cottages.” Sansotta at 28.  It is another interesting scholarly question as to whether that windfall can or should be distributed back in some way to the ousted beachfront owner, thus mitigating the total loss otherwise felt by the homeowner.   We have foisted much upon scholars here, but for planning purposes there may be no other place to find answers besides academe.  We haven’t been here before and if there’s a hope of avoiding swamping the littoral courts with lawsuits over windfalls and takings, then that hope must hinge on some well thought-out plan.  Stay tuned.  Sansotta's time for appeal has not yet run and, in any event, future hurricanes coming ashore at higher mean sea levels are inevitable, and so will be future disputes.

Climate Change Litigation | Rising Sea Levels | Weather

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

April 29, 2013 05:49
by J. Wylie Donald
One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts.  The public trust doctrine is being hammered out in that direction. Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change.  Although the court affirmed the trial court’s dismissal of the suit, before reaching that conclusion it specifically rejected Arizona’s argument that greenhouse gas issues are non-justiciable under the doctrine. Butler is one of a slew of cases and regulatory petitions against the federal and state governments orchestrated by Our Children’s Trust, a public interest organization based in Oregon.  We have commented on OCT previously.  Its success has not been overwhelming, or even any.  Not one court has concluded that a state or the federal government can be compelled to do anything. Yet, if the measure of success is whether one’s theory is more well-formed than previously, and whether one can cite more legal precedent supporting it, then OCT is moving its ball forward.  By our count, OCT has positive rulings on its atmospheric trust theory from Texas, New Mexico and now Arizona. In Butler, the appellant raised only one issue:  "[w]hether the [public trust doctrine] in Arizona includes the atmosphere.”  The State of Arizona engaged that argument head on:  “the Doctrine does not include the atmosphere.”  Arizona also raised defenses of displacement, standing, and political question, among others.  The court considered prior Arizona and federal precedent to set forth the scope of the doctrine: First, that the substance of the Doctrine, including what resources are protected by it, is from the inherent nature of Arizona's status as a sovereign state. Second, that based on separation of powers, the legislature can enact laws which might affect the resources protected by the Doctrine, but is it up the to judiciary to determine whether those laws violate the Doctrine and if there is any remedy. Third, that the constitutional dimension of the Doctrine is based on separation of powers and specific constitutional provisions which would preclude the State from violating the Doctrine, such as the gift clause. From those principles the court had no difficulty responding to Arizona’s argument that the doctrine did not apply to the atmosphere:  “we reject the Defendants' argument that the determinations of what resources are included in the Doctrine and whether the State has violated the Doctrine are non-justiciable.”  Further, “While public trust jurisprudence in Arizona has developed in the context of the state's interest in land under its waters, we reject Defendants' argument that such jurisprudence limits the Doctrine to water-related issues.” (Note, however, Presiding Judge Gemmill concurred separately and stated:  "the atmosphere is not subject to the public trust doctrine.") Thus, “For purposes of our analysis, we assume without deciding that the atmosphere is a part of the public trust subject to the Doctrine.”  Unfortunately for the appellant, this was as far as the court was willing to go.  Appellant did not point to any violation of the Arizona Constitution or statutory law.  Such a violation was mandatory for the claim to succeed.  Additionally, in 2010 Arizona’s legislature took strong steps to ensure that the regulation of greenhouse gases remained in its bailiwick, rather than any administrative agency’s.  A.R.S. 49-191 provides: A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization. Absent a ruling that A.R.S. 49-191 was unconstitutional, there was no order the court could issue that would be able to implement the relief appellant sought.  Accordingly, appellant had no standing. Rome wasn’t built in a day.  The atmospheric public trust doctrine hasn’t been either.  But construction continues. 

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

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