CPR Archive for John Echeverria

The Flood of Takings Cases after Hurricane Harvey

by John Echeverria | October 23, 2017

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. 

What is surprising is that property owners upstream and downstream from the project have now filed as least 61 – yes, 61! – separate lawsuits in the U.S. Court of Federal Claims (CFC) asserting a "taking" of their private property under the Takings Clause of the Fifth Amendment of the U.S. Constitution. All told, the complaints seek "just compensation" from the U.S. government to the tune of several billions of dollars. 

Generally speaking, the plaintiffs assert that ...

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

by John Echeverria | March 15, 2017
On Monday, the Supreme Court will hear oral argument in a seemingly minor zoning case, Murr v. State of Wisconsin. In reality, the case involves a fundamental challenge to public authority to protect our communities and private property. In particular, if the Court were to rule in favor of petitioners, it would make it vastly more difficult for communities to compel large-scale developers to comply with zoning and other land use laws. Here’s the back story. In 1972, the Secretary ...

The Horne Case and the Public Trust in Wildlife

by John Echeverria | April 29, 2015
Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court last week might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really. The Horne case involves a claim that an arcane raisin-marketing program administered by the Department of Agriculture effects a taking by requiring raisin growers, in certain years, to turn over a portion of their crop to the government in order to keep raisin prices high.   While there ...

In Horne v. Department of Agriculture, SCOTUS to Wade into Complicated Nest of Takings Issues

by John Echeverria | March 13, 2013
Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches.  To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls. The issue representing ...

The Muddy Arkansas Game and Fish Commission Case

by John Echeverria | September 25, 2012
The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed.  The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause.  But there are two other  -- arguably ...

In Stop the Beach Renourishment Ruling, Conservatives Come up One Vote Short in Quest to Remake Property Rights Law

by John Echeverria | June 17, 2010
If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” ...

The Florida Beach Case Comes to Supreme Court: A Badly Flawed Test Case for Property Rights Advocates

by John Echeverria | November 30, 2009
On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here). Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their ...

Also from John Echeverria

John Echeverria is Professor of Law at Vermont Law School.

The Flood of Takings Cases after Hurricane Harvey

Echeverria | Oct 23, 2017 | Regulatory Policy

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

Echeverria | Mar 15, 2017 | Environmental Policy

The Horne Case and the Public Trust in Wildlife

Echeverria | Apr 29, 2015 | Access to the Courts

The Muddy Arkansas Game and Fish Commission Case

Echeverria | Sep 25, 2012 | Environmental Policy

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