Palazzolo and the Decline of Justice Scalia\u27s Categorical Takings Doctrine

This Article maintains that despite the fact that the Palazzolo decision gave the landowner victories by relaxing ripeness hurdles to filing takings cases and rejecting the government’s “notice rule”—under which the existence of preexisting regulations would defeat takings claims—the chief significance of the case is the Court’s signal that it will reject attempts to expand categorical rules in takings cases. According to this view,Palazollo will be remembered for the decline of Justice Scalia’s categorical approach to takings, as reflected in his Lucas opinion, and for the triumph of multi-factor balancing championed by Justice Brennan’s Penn Central opinion. A postscript to the Article contends that the Court’s Tahoe-Sierra decision, decided while the Article was in press, confirms these predictions

The Oregon & California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management. It discusses how these lands revested to the federal government following decades of corruption and scandal and analyzes the resulting congressionally created management structure that supported local county governments through the over-harvesting of lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan—which this Article explains in detail—the timber salvage rider of 1995, and the George W. Bush Administration’s unsuccessful attempts to change the compromise reached in the NWFP. The article then explains how decreases in timber harvesting and declines in federal payments have brought the counties reliant on these lands to the brink of insolvency and analyzes two current legislative proposals aimed at bolstering flagging economies through increased harvests on O&C lands. The article concludes by identifying significant economic and environmental flaws in both of these proposals and suggests several alternative revenue-producing options that could provide economic security and diversity to the counties without eviscerating the key environmental protections provided by the NWFP and other federal environmental protection statutes

The Public Trust Doctrine and Private Property: The Accommodation Principle

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, transforming fee simple absolutes into defeasible fees, and recognizing pubic easements on private land titles. The article concludes that the public trust doctrine, if properly understood, can perform the important function helping to modernize property law

Ancient Forests, Spotted Owls, and Modern Public Land Law

This article is a revised version of a 1991 speech on the battle then looming over ancient forests and timber harvests in the Pacific Northwest. It discusses the biology and ecology of old-growth forests and their relationship to the northern spotted owl. It also explains the legal framework governing federal timber harvests, including the National Environmental Policy Act, the National Forest Management Act, and the Endangered Species Act. Finally, the article examines several then-pending and legal challenges to continued industrial timber harvesting, including Seattle Audubon Society v. Robertson, Northern Spotted Owl v. Hodel, and Marble Mountain Audubon Society v. Rice. The article concludes by drawing a number of institutional lessons evident from the environmentalist campaign to preserve ancient the Pacific Northwest\u27s forests

Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife

In Horne v. Department of Agriculture, the Supreme Court expanded its so-called per se analysis under the Takings Clause to government actions impairing possession of personal property. The Court decided that a New Deal era agricultural program effected a taking by requiring raisin growers to turn over a portion of their crops in certain years to a governmental body that disposes of the raisins in noncompetitive markets. The raisin marketing program, which by law only persists with continuing support from the raisin industry itself, aims to control the market supply of raisins, and thereby elevate and stabilize the prices received by raisin growers. Despite the unusual character of the program, a majority of the Court ruled that certain dissident raisin growers were entitled to prevail on their theory that government appropriations of personal property interests in raisins were governed by the same per se takings rule that applies to government appropriations of real property. The Court\u27s analysis of the takings issue is problematic for a number of reasons , including 1) the fact that these particular plaintiffs, who were proceeding in the capacity of raisin handlers, were not the actual owners of the raisins at issue, and therefore could not legitimately claim a taking of their private property; 2) the Court\u27s modern precedents and traditional practice support the idea that government has broader latitude in controlling personal property than real property, contradicting the Court\u27s new per se rule; 3) there was a substantial question as to whether the program imposed an unconstitutional taking of property without just compensation, given the significant offsetting benefits growers received from this price support system; and 4) the Court failed to give the government the opportunity to defend the conditions imposed on raisin growers by showing that that the conditions satisfied the standards articulated in Nollan v. California Coastal Commission and Dolan v. City of Tigard. Each of these issues provided a proper basis for affirming the Ninth Circuit\u27s rejection of the takings argument. Nevertheless, Chief Justice John Roberts\u27 majority opinion either ignored or skimmed over all these issues and applied a per se takings rule to this context. Figuring out the implications of the Horne decision for drug forfeiture laws, unwholesome food recalls, and animal cruelty statutes has been left to other days and other cases. The Horne decision did include an unexpected result of considerable benefit to government defendants, however: the Court distinguished the raisin marketing program from a similar program involving oysters that it upheld against a takings challenge in a 1929 decision. The Chief Justice explained that, unlike raisins, oysters were public property. The Court thereby ratified the venerable but somewhat misunderstood doctrine of sovereign ownership of wildlife. States employ this doctrine, inherited from England and nearly universally adopted by American states, to uphold wildlife conservation regulations and defeat claims of private ownership. Often referred to as the wildlife trust, the doctrine is the kind of background principle of property law that the Court recognized as defeating claims of takings in its 1992 decision of Lucas v. South Carolina Coastal Commission. In this article we examine the Horne decision in some detail. Although the case does extend the Court\u27s takings jurisprudence to an uncertain extent by applying the per se analysis to personal property, we think the long-term ramifications of the decision lie in the Court\u27s recognition of the sovereign ownership of wildlife. That doctrine not only will defeat private takings claims but should sanction affirmative regulation of wildlife and protection for its habitat, authorize government actions to recover damages against those harming wildlife and wildlife habitat, and reinforce public standing to enforce the wildlife trust

The Florida Beach Case and the Road to Judicial Takings

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the rights to future accretions of sand and to maintain contact with the water. The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking claim they unsuccessfully pursued in the Florida courts to the judicial taking claim they argued before the Supreme Court. The petitioners contended that the Florida Supreme Court’s interpretation of Florida property law warranted constitutional compensation because the effect was to replace an eroded, hurricane-ravaged private beach with a restored, publicly-accessible beach. Although no member of the Court agreed that the lower court’s opinion amounted to a taking, a four-member plurality, led by Justice Scalia and encouraged by numerous amicus briefs filed by libertarian property groups, gave a ringing endorsement to the concept of judicial takings. Moreover, two other members of the Court, Justices Kennedy and Sotomayor, claimed that state court property law interpretations could be cabined by the Due Process Clause. The result portends ominous implications for state courts’ capability to perform their traditional common law function of updating property law to reflect contemporary values and may unsettle federalstate judicial relations by encouraging litigants to appeal adverse state property law decisions to federal courts

Heat capacity of α\alpha-GaN: Isotope Effects

Until recently, the heat capacity of GaN had only been measured for polycrystalline powder samples. Semiempirical as well as \textit{first-principles} calculations have appeared within the past few years. We present in this article measurements of the heat capacity of hexagonal single crystals of GaN in the 20-1400K temperature range. We find that our data deviate significantly from the literature values for polycrystalline materials. The dependence of the heat capacity on the isotopic mass has also been investigated recently for monatomic crystals such as diamond, silicon, and germanium. Multi-atomic crystals are expected to exhibit a different dependence of these heat capacities on the masses of each of the isotopes present. These effects have not been investigated in the past. We also present \textit{first-principles} calculations of the dependence of the heat capacities of GaN, as a canonical binary material, on each of the Ga and N masses. We show that they are indeed different, as expected from the fact that the Ga mass affects mainly the acoustic, that of N the optic phonons. It is hoped that these calculations will encourage experimental measurements of the dependence of the heat capacity on isotopic masses in binary and more complex semiconductors.Comment: 12 pages, 5 Figures, submitted to PR

The Public Trust in Wildlife

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine—sovereign ownership of wildlife—is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This Article claims that these two doctrines should be merged and that state sovereign ownership of wildlife means that wildlife—like navigable waters—is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states the authority to manage their wildlife populations, but also the duty to do so, and would equip members of the public with standing to enforce the states’ trust duties in court. This Article shows that the public trust in wildlife has already been employed in California and several other states and suggests that it deserves more widespread judicial recognition, particularly since—as the Authors demonstrate—no fewer than forty-eight states have used trust or trustlike language in describing state authority to manage wildlife

Environment, Economy, and Community in the Pacific Northwest

This edited speech, delivered to a 1995 American Bar Association conference on the Endangered Species Act, drew the close parallel that has always existed between environment and economy in the Pacific Northwest. The talk emphasized forests, dams, and fish hatcheries as examples of the trade-offs that have been made and still exist. The talk emphasized discrepancies in Northwesterners\u27 conflicting views of science, economics, and sense of place and the need to find common ground