Monday, February 13, 2012

"In Land, Straight Lines Make For Square Deals"

Land in the USA not located in the east or Texas is divided into 6 mile-square townships by the Public Land Survey System. The townships are further divided into sections one mile square. These sections can be further subdivided.

Gary D. Libecap of the Hoover Institution argues that this system strengthens and protects property rights, thereby promoting economic development. To make his point, he looks at an area of Ohio called the Virginia Military District (VMD) which, to this day, is divided by the old metes and bounds method. ("From the big oak tree north to the stream," etc.) The land around this district is divided by the Public Land Survey System. Libecap and a colleague found the following.

Using census data, we examined land values in the VMD and adjacent counties in two ways. First, we gathered land values, land characteristics, and individual owner attributes from the 1850 and 1860 censuses. Then we gathered land values for the same regions from 1850 through 1950 (the census changed the way it collected data after that so we could not go through 2010). We found that, controlling for land and owner characteristics, land values were around 25 percent higher under the rectangular system than under metes and bounds in 1850 and 1860. Further, extending the analysis for 100 years revealed that these land value differences persisted!

To learn why that might be so, we turned first to data on land disputes from Ohio court records. Over the entire nineteenth century, we found that parcels in the VMD had 18 times more land boundary disputes than the rest of Ohio combined. Indeed, the history of the VMD is one of ongoing land conflicts. We then turned to land market activity. Land transactions in the middle of the nineteenth century were about 75 percent greater in the counties adjacent to the VMD than within it.

Land values were 25 percent higher in the rectangular system than in metes and bounds.

Finally, we looked at the long run to see how weak property rights, diminished land market activity, and continuing boundary disputes affected the VMD relative to adjacent and otherwise comparable lands under the rectangular system. Remarkably, not only did the rectangular survey lands have higher land values from 1850 through the middle of the twentieth century than the metes and bounds lands in the VMD, but they gradually had higher population densities, more urbanization, and more investment in industry. The VMD lands, which started out similarly to the surrounding regions, steadily fell behind in attracting people and economic activity

Thursday, February 09, 2012

Grossly Abuse The Judicial Process, Don't Get Hit With Costs Or Fees

In a decision released today, the US Court of Appeals for the Ninth Circuit begins its opinion with the following.
This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, “new” plaintiffs appeared. Represented by the same attorney as the losing parties in the first lawsuit, the “new” plaintiffs—who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation—brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development. Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the “new” plaintiffs’ lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

Nevertheless, it ends with:

the Save the Peaks Plaintiffs’ request for reasonable
fees and costs is denied.

If it is a gross abuse of judicial process, punish it by requiring plaintiffs to pay defendants their costs and attorney fees. If it doesn't merit that punishment, maybe one shouldn't call it a gross abuse of judicial process. The case is SAVE THE PEAKS COALITION v. USFS, 10-17896.

Sunday, February 05, 2012

Ninth Circuit Issues Amended Opinion Concerning PAC Money in Washington

On January 31, 2011, the US Court of Appeals for the Ninth Circuit issued a decision and an amended opinion on Washington's election laws as they pertain to financial contributions by PACS for or against ballot measures.
We address the constitutionality of three provisions of Washington election law as applied to the political committees that support and oppose ballot measures. We hold that Washington’s disclosure requirements, Washington Revised Code § 42.17.090 and Washington Administrative Code § 390-16-034, which require these committees to disclose the name and address of contributors giving more than $25, and additionally to disclose the employer and occupation of contributors giving more than $100, survive exacting scrutiny because they are substantially related to the important governmental interest in informing the electorate. We hold that Washington Revised Code § 42.17.105(8), which prohibits a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election, is not closely drawn to achieve the state’s important interest in informing the electorate. Section 42.17.105(8) is therefore unconstitutional as applied to ballot measure committees.
We affirm the judgment of the district court.

Thursday, February 02, 2012

Are Floodway Restrictions Unduly Oppressive?

Nope, not according to Division 3 of the Washington Court of Appeals. In a decision issued today the court reviews the current law of nonconforming structures and substantive due process in Washington.

Sun-Tides Mobile Home Park is located in the floodway of the Naches River. When a mobile home was completely removed and the lot became available, a building permit was applied for to install a new mobile home. The permit was denied because the previous home was a nonconforming structure. The Park appealed to the Superior Court which reversed the denial as violative of substantive due process. On appeal by Yakima County and the Department of Ecology, the Court of Appeals reversed the Superior Court.

Sunday, January 29, 2012

Stream Restoration: A Source of Liability?

As an attorney and a geomorphologist interested in stream restoration, I wonder about liability for a restoration project if it damages property. Stream restoration is a popular and growing activity. Be it to improve habitat or other worthy goals, what happens if a restoration goes wrong -- or is at least accused of going wrong? What if, for example, a claim is made that the stream restoration project is causing increased flooding? Could happen. In fact, it has.

In a lawsuit recently filed in Whatcom County Superior Court, Washington, property owners allege that a project on an adjoining property is causing increased flooding. While the suit is in early days, with only a complaint and one answer filed to date, and with the factual situation not yet entirely clear (at least to me), I think it worth following for those involved in restoration work.

Streams and rivers are fickle beasts with minds of their own. Stream flow is the architect of its own channel, to paraphrase the great geomorphologist Luna Leopold.

In Shuksan v. Whatcom Conservation District the complaint alleges at paragraph 10 that "[a]n important feature of the new channel was that it was designed to convey 'bankfull' flows but not higher flows." The answer of the conservation district is, in part, that "[t]he District admits that paragraph 10, provides a generally accurate description of design specifications that speak for themselves."

It is generally thought that "bankfull" discharge will occur about once every two years in a natural channel whose bed and banks are composed of materials that the stream flow has transported in the past and will transport again in the future. So, if one sets out to restore a channel to its natural condition, one would most likely seek to recreate a channel sized to just carry "bankfull" discharge. If so sized (and much effort has been expended in how to determine this size by folks doing restoration work), that stream channel will flood over its banks every couple of years.

Now there are almost certainly complicating issues in Shuksan that the highly accomplished attorneys involved will suss out to great effect. This writer takes no position on who will or should prevail in this suit. The point for me is the more general issue: a stream restoration is not essentially a flood-control project. Flooding can be an issue with a restoration project.

Updates will follow as warranted.

Friday, January 27, 2012

Court of Appeals Issues New Opinion Upholding Jefferson County's Channel Migration Zone Critical Area Ordinance

Yesterday, Division II of the Court of Appeals withdrew its prior opinion in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 4027-6-II, and issued a new opinion. The new opinion finds that the County properly applied "best available science" in requiring retention of vegetation in valley bottoms with migrating river channels.
We agree with the Board that the County addressed the relevant sources of best available scientific information included in the decision malting on the record as WAC 365-195-915(1)(b) requires. As the Board observed, the BOCC 2008 ordinance specifically identified a 24-page bibliography of scientific literature that the BOCC evaluated in order to develop the critical areas regulations See Ordinance 03031708 at 17 Ex A. Additionally, the findings in the 2008 ordinance singled out detailed studies and reports by the Department of Ecology, the Bureau of Reclamation, Perkins Geosciences, and a former manager of the County natural resources division. Ordinance 03031708 at 910. The 2009 ordinance incorporated these findings and cited additional studies and maps by Perkins Geosciences as the scientific basis for addressing the Board's final decision and order. Finally, as the Board recognized, these studies and reports discuss in part the specific value at issue here, the importance of vegetation in the river environment "especially in regards to its significant role in erosion control bank stabilization bank protection and bank accretion." 1 AR at 825.
We do not read Concerned Friends of Ferry County as imposing a duty on a county to describe each step of the deliberative process that links the science that it considers to the adopted policy or regulation. Nor does the relevant Department of Commerce regulation impose such a duty -- rather it requires that counties "address...on the record ... [t]he relevant sources of best scientific information included in the decision making." WAC 365-195.915(1)(b). Here because the County complied with this requirement we conclude that the Board correctly applied RCW 37.70A.172(1). [Emphasis added.]

So, as long as you cobble together a bibliography, you're home free.

Thursday, January 26, 2012

News from the Deepwater Horizon Multidistrict Litigation

Not Washington, but interesting:

BP tried and failed to get a piece of Transocean's $750M insurance coverage: Order(InsuranceActions).pdf Note the language from the Drilling Contract at p. 40:

Article 24 of the Drilling Contract allocates responsibility for pollution risks between the
“Contractor” (Transocean) and the “Company” (BP):
24.1 Contractor Responsibility
[Transocean] shall assume full responsibility for and shall protect, release, defend,indemnify, and hold [BP] and its joint owners harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or ontamination, including control and removal thereof, originating on or above the surface of the land or water, from spills, leaks, or discharges of fuels . . . or any other liquid or solid whatsoever in possession and control of [Transocean] and without regard to negligence of any party or parties . . . . [Emphasis added.]
* * *
24.2 Company Responsibility
[BP] shall assume full responsibility for and shall protect, release, defend, indemnify, and hold [Transocean] harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or contamination, including control and removal thereof, arising out of or connected with operations under this contract
hereunder and not assumed by [Transocean] in Article 24.1 above, without regard for negligence of any party or parties . . . .
Rec. Doc. 3211-6, at 11-12.

There are cross motions for partial summary judgment (essentially re liability) betwixt BR and Transocean awaiting decision: MinuteEntry.pdf (p.3)

The Court heard oral argument on Transocean’s Motion for Partial Summary Judgment against BP to Enforce BP’s Contractual Obligations (Rec. Doc. 4477) and BP’s Cross-Motion for Summary Judgment against Transocean (Rec. Doc. 4827). John Elsely argued on behalf of Transocean. Andy Langan argued on behalf BP. Steve O’Rourke argued on behalf of the United States. The Motions (Rec. Docs. 4477 and 4827) were taken UNDER ADVISEMENT.

According to news reports, BP hopes to evade the Drilling Contract language by claiming "gross negligence" on the part of Transocean. Good luck with that. Article 24 (supra) says "any loss .... " Should have a decision soon. The liability trial is set to start on February 27, with damages to be tried in July. OilSpill/Orders/PTO32.pdf

BP is represented by Kirkland and Ellis. Transocean went with a Texas firm, Royston Rayzor. Heavy hitters, to say the least.