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Ocean and Coastal Hildreth
University of Oregon

Additional Law Flashcards




Riparian owner's rights
right of access to reach the water, the right to accretions, the right to an unobstructed view, a qualified right to wharf out, the right to make commercial use of water access, the right to make reasonable use of the water, and the right of navigation in common with the public
Navigation Servitude
o A paramount federal servitude on navigable waters based on the commerce power rather than ownership or trust responsibilities
• It allows for the removal of any impediment to navigation without compensation to an owner and in some cases limits traditional riparian uses
• In response to the no compensation aspect of navigation servitude, Congress enacted §111 of the Rivers and Harbors Act which says that in condemnation proceedings, to acquire riparian property for river, harbor, and waterway improvement, “the compensation to be paid shall be the fair market value of such real property based upon all uses to which such real property may reasonably be put.”
Ambulatory boundaries
o Shorelines aren’t stable, and they either gradually or drastically change→Owners may gain or lose land affected by the various processes of accretion, erosion, avulsion, and reliction
• The process by which upland is created by the gradual depositing of sand or sediment along the shore by the waters→the sand deposited is called alluvion
• SCOTUS rules for accretion St. Clair County v. Lovingston
o De minimus non curat lex—the law does not care for small things
o This rule preserves the landowner’s right of access to the water
o The owner bearing the burden of potential losses of property in contiguity to water should also receive any benefits from accretion
Artificial Accretion
o The federal rule is that it doesn’t matter how the accretion took place
o Generally states say that an owner cannot increase or extend their upland boundaries through artificial accretion
The gradual wearing away of land by water which results in movement of an owners property boundary
Any sudden and perceptible change in the shoreline by action of the water. Because the change occurs quickly and the original boundary is identifiable, the boundary doesn't change
A drastic increase in land due to natural causes
Dorrah v. McCarthy
Adjacent properties along a concave shoreline and McCarthy applied to build a dock

Rule-->when a shoreline is straight the property line extends out to the navigable waters, but when it curves this method doesn't work, so it has to be equitably distributed
In Re protest Mason
Man was operating a clam business and had acquired a lease for a 1.8 acre spot on the bottom of Core Sound directly in front of Mason's property

Rule-> One does not have the right to access water in a straight line from the property, as long as the water can be directly accessed, the other person is not interfering with their rights
High Seas Jurisdiction
Generally only the flag country has jurisdiction over a vessel on the high seas.

Exceptions include:
vessels or aircraft involved in acts of piracy
vessels engaged in unauthorized broadcasting
ships of uncertain nationality, no nationality, or sailing under two or more flags
vessels involved in maritime casualties threatening or causing major pollution and damage to a coastal country or its resources
vessels that are the objects of hot pursuit for violation of laws within internal, territorial, or EEZ waters
UNCLOS I (1958)
held in Geneva

4 treaties
1) Convention on the territorial sea and contiguous zone
2) Convention on the continental shelf
3) convention on the high seas
4) Convention on fishing and living resources of the high seas
UNCLOS II (1960)
No new agreements--cold war politics
Came into force in 1994

Coastal states are free to set laws regarding internal waters, and foreign vessels have no right of passage in these waters

The territorial sea is stretched to 12 nautical miles

Vessels can have innocent passage

For Archipelagos, the law treats those waters as internal waters, giving significant governance to the island nations, but other vessels have innocent passage

EEZ goes out to 200 nautical miles

The continental shelf extends 200 miles from the baseline
Contiguous zone
a zone extending from the territorial zone out to 24 nautical miles, where a coastal country can enforce laws concerning customs, sanitation, fiscal, and immigration law

If the coast guard has reasonable suspicion about a vessel it can go after any vessel that has entered the EZ
Submerged Lands Act
gives states the power over the 3 mile boundary out to the sea

It was passed in 1953

Contains the Water Power Exclusion which could potentially give the federal government power over the production of tidal energy despite the fact that it exists in the 0-3 zone
Right of innocent passage
vessels of foreign nations have the right of innocent passage through another country's territorial sea

Submarines are not considered innocent--they are only innocent if they come to the surface
Exclusive Economic Zone
Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds
continental shelf
everything within 200 miles is a part of an EEZ

When the continental shelf goes beyond 200 miles the rule is that it is up to a commission which the US is not a part of
Illinois Central Railroad Co. v. Illinois
The cornerstone of the public trust doctrine

1869 legislative act gave Illinois Central submerged lands under Chicago Harbor- Public outcry coupled with a new legislature sought to repeal the act as soon as 1874

The court said the title the state had for the submerged land under the lake was much different than its title to lands that it could sell-->It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties

The trust devolving upon the state for the public..cannot be relinquished by a transfer of the property--The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining

"The soil under navigable waters being held by the people of the state in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It is therefore appropriately within the exercise of the police power of the state
People v. Chicago Park
The Illinois legislature once again tries to enact a statute to give US Steel a significant portion of Lake Michigan land

The rule that comes out of this case is that for a public body to grant land held in trust to a private entity, the project taken on by the private company has to be beneficial to the public such as in the building of a bridge--The public's benefit cannot simply be incidental such as "improving the economy, and providing jobs"
Caminiti v. Boyle
A WA statute allowed for owners of land adjacent to tidelands to build docks and wharves free of charge out into the water

The court deemed that this statute did not violate the public trust doctrine because the State did not give up significant amounts of rights by granting this, and it was promoting public interest, albeit in a very minute fashion.

Furthermore, it does not substantially impair jus publicum
Lewis Blue Point Oyster Co. v. Briggs
Guy is operating an oyster farm in land that has been proposed as a dredge site to create a navigable channel

Rule-->Even though he has leased a title to the submerged lands the "right to control, improve and regulate the navigation of such waters is one of the greatest of the powers delegated to the US by the power to regulate commerce"
Applegate v. United States
Over 300 owners land was affected by the creation of Cape Canaveral Harbor Project which caused the flooding and erosion of over 41 miles of white sandy beaches
Ford v. Turner
The Turner lots gradually increase over time and actually move in front of the diminishing Ford lot, which has now turned into a small island

Rule--land that is accreted from the littoral owner can be added or taken away--it's essentially a risk that comes along with being an owner of this type of land
U.S. v. California
California had leased permits to various private parties to off shore sites for drilling oil within the 3 mile zone

The Supreme Court decides (in 1947) that the federal government is the offshore resource manager due to its "paramount rights in and power over that belt (0-3 miles)"

This was overridden by the Submerged Lands Act which was passed under Eisenhower 6 years later in 1953
Outer Continental Shelf Lands Act (1953)

The Outer Continental Shelf Lands Act of 1953 (OCSLA) (67 Stat. 462) provides a mechanism for the federal government to establish ownership of and jurisdiction over the subsoil and seabed of the Outer Continental Shelf. The Outer Continental Shelf is the submerged edge of land that slopes towards the bottom of the ocean. The purpose of establishing ownership and jurisdiction is to allow for the exploitation and conservation of the land and extractable resources contained there. The main extractable resources that are the concern of the OCSLA are oil and natural gas, although it contemplates jurisdiction over any minerals discovered.
Phillips Petroleum v. Mississippi
Equal Footing Doctrine
-States admitted to the U.S. are given the same legal rights as the preexisting states
-This means the U.S. held in trust all coastal waters and those coastal waters were handed down to a state when entering statehood
-All land subject to tidal influence are considered navigable at the time of statehood
Federal Definitions of Navigability
Daniel Ball
-Navigable in fact; used or are capable of being used in their ordinary condition as highways for commerce

U.S. v. Appalachian Electric Power
-Expanded the Ball definition to say, it is proper to consider the feasibility of interstate use after reasonable improvements have been made
State Authority over Submerged Lands
Public Trust Doctrine
-The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining

State use of public trust lands
-In most cases, conveyances of public trust lands are treated as valid but subject to the public's continuing public trust use rights
Shively v. Bowlby
-Property clause permits Congress to convey territorial public trust lands in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states

-There is a strong presumption against conveyance by the United States of title to the bed of navigable waters
littoral rights
Those rights that concern continued enjoyment of the shore of an ocean, sea, or lake
Lummis v. Lilly
-Lilly built a groin that caused his beach to expand at the expense of Lummis'

-Reasonableness-->A use may result in some diminution, obstruction or change in the natural flow of the water, but the interference cannot exceed that which arises from reasonable conduct in light of all the circumstances, having due regard to the exercise of the common right by other riparian owners

-Factors to be considered in reasonableness inquiry
-Purpose of the use, suitability of the use to the water course, economic value of the use, social value of the use, the extent and amount of harm it causes, practicality of adjusting the quantity of water used by each owner, protection of existing values of water uses land investments and enterprise, and the justice of requiring the user who is causing the harm to bear the loss
Stop the Beach v. Fl. Dept. of Env. Protection
-Florida wants to fill state owned submerged lands following a hurricane seaward of the mean high water line

-SCOTUS decided this renourishment was an avulsion, meaning the property owners along the shoreline where this filling was to take place could not have their property lines redrawn following the filling

-Artificial accretions may be considered an avulsion meaning no change in property lines (minority view)
Becker v. Litty
Litty lived on an island only accessible by land or water, and obtained a permit to build a private bridge to the mainland

-Neighbors protested the bridge saying that the three foot high bridge would block their navigation

-The court allows the bridge to be built
-The riparian owner has a right of access to water in front of his land--this does not encompass a right of free navigation
Slavin v. Town of Oak Island
-A littoral property owner's right of access to the ocean is a qualified one, and is subject to reasonable regulation

-when the public authorities see fit to make improvements on the land below the high water mark for purposes of improving navigation, the riparian owner must yield

-If such improvements have the effect of cutting off access it is no ground of complaint because the upland property owner had no right to free and unobstructed access to navigable waters of said tidelands against the right of the state to at any time devote them to the improvements of the harbor in aid of the public easement of navigation and commerce
Ocean City v. Maffucci
Loss of ocean view and access are elements for which severance damages may be awarded
Pubic Access Theories
1) Public Prescriptive easements
2) Implied Dedication
3) Customary Access Rights
Public Prescriptive easements
-A public prescriptive easement across privately owned beachfront property may arise when the public crosses the private land to reach the wet sand beach. If the public use meets the traditional common law requirements of being (1) open and notorious, (2) continuous and uninterrupted, and (3) adverse for the prescribed period of time, then the public would acquire a permanent easement
Implied Dedication
-The theory of implied dedication is not usually dependent upon establishing public use for a set period of time, nor does the use have to be adverse

-the essential requirements are established by acts or circumstances that show the landowner intended to donate an easement to the public and such an offer was impliedly accepted
Customary Access Rights
The essential requirements of such a claim are:

-Long and general usage
-Without interruption by private landowners
-Peaceful and free from dispute
-Certain as to its scope and character
-without objection by landowners
-Is not contrary to other customs or laws
Kaiser Aetna v. U.S.
Pond owned by plaintiff as private property, was separated from navigable waterway by a barrier beach-->This land had always been considered private property by the HI government

-Improvements to the pond were made in order to allow boats from the bay to enter and leave-->The Army Corp of Engineers claimed that because the pond was connected to the bay, and transformed into a navigable waterway, that plaintiff was required to obtain a permit for future work on the marina and was precluded from denying the public access

-->The government's attempt to create a public right of access to the improved pond goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking

-This holding could potentially be confined to situations in which indigenous and long standing laws on private property are similar to Hawaii's laws
Army Corp of Engineers
-Maintenance of commercial harbors and navigation channels continues to be a major activity of the Corps

-Authorized to engage in sand placement projects intended to mitigate shoreline damage directly attributable to federal navigation works, such as beach erosion caused by jetties protecting inlets and other navigation channels

-The Corps has authority to place beach quality sand, dredged as part of the construction maintenance of navigational improvements on adjacent beaches
-The most controversial of Corps projects tend to be long tern renourishment projects
National Environmental Policy Act

-This is a procedural, not a substantive act

-When the fed gov. through entities such as the Corps, plays any significant role in the encouragement, promotion, or implementation of coastal development projects, the governmental entity must abide by the mandate of NEPA

-It encourages productive and enjoyable harmony between man and his environment

-All agencies shall include in every recommendation or report on proposals for legislation affecting the quality of the human environment, a detailed statement that includes:
-The environmental impact of the proposed action
-Any adverse environmental effects which cannot be avoided should the proposal be implemented
-Alternatives to the proposed action
-The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity
-Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented

-Prior to making any detailed statement, the responsible federal official shall consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved
-it doesn't prohibit agency action that may result in environmental degradation but it requires the environmental costs of any major agency action to be disclosed to the public and to be a significant consideration in the decision-making process

-In order for the agency decision to be set aside, the court must find that the decision was arbitrary and capricious-->Does not articulate a rational connection b/w the facts and the choice of location for the project
Defenders of Wildlife v. Department of the Navy
-Plaintiffs wanted a preliminary injunction stopping the construction of a naval base until a decision could be made concerning the filed EIS

-In determining whether to grant preliminary injunctive relief the court employed the "hardship balancing test"
-The balance of the harms to plaintiff and defendant, and the likelihood of plaintiff's success on the merits, and the public interest

-balance of irreparable harm to plaintiff and defendant if relief is granted is the most important
Rivers and Harbors Act
-Jurisdiction limited to activities below the mean high water line on navigable bodies of water

§9-Have to have Corps approval for building obstructions or things over navigable waters

§10-To build a damn outside the authorization of Congress you need approval from the Chief of Engineers and the Army Secretary

§13- Cant discharge or deposit any refuse matter into navigable waters or tributaries of them or on the banks w/o approval of the Chief of Engineers and Secretary of the Army
U.S. v. Lambert
RHA violated when one placed a boat dock in the river without a §10 permit and when they placed refuse in the river (§13)
Clean Water Act §404
§404-->it gives the Corps the power to regulate the discharge of dredge and fill material into navigable waters

-DOES NOT supersede the Corps authority under the RHA but the permit process for the two acts is almost identical

Except for §404, the EPA is the governmental agency designated to administer the CWA--they have the ultimate authority to construe the term "Waters of the United States" and thus determine the reach of §404
§502 of CWA

Pollutant- Dredged spoil, solid waste, biological materials, rock, or sand discharged into water
Navigable waters-The waters of the United States, including territorial seas
Discharge of pollutants- any addition of any pollutant to navigable waters from any point source; and any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft
Leslie Salt Co. v. Froehike
The mean high water line is not a limit to federal authority under §404. Federal authority is granted under Commerce clause, which gives Congress ample authority to reach activities above the high water line

-Congress intended to expand the narrow definition of the term "navigable waters" and it should be given the broadest definition possible

-Corps jurisdiction extends at least to waters which are no longer subject to tidal inundation because of manmade obstructions without regard to the location of historic tidal water lines in their unobstructed, natural state
Rapanos v. United States
-Establishing that wetland sites are covered by the CWA requires two things
(1) That the adjacent channel contains a water of the united states, and
(2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins
Wetlands Defined
§328 of Corps Regulations

-The margin between wetland and open water can best be established by specialists familiar with the local environment, particularly where emergent vegetation merges with submerged vegetation over a broad area

-Wetland vegetation consists of plants that require saturated soils to survive. In addition to plant populations and communities, wetlands are delimited by hydrological and physical characteristics of the environment

A wetlands determination involves two decisions

o 1) The basic determination of what constitutes wetlands.
• Corps Regulation section 328 embodies a three parameter test for wetlands
• Hydrology, vegetation, and soil conditions
o 2) Where to draw the line between the “wetlands” and the uplands.
• The more gradual the transition, the more discretion the wetlands delineator may have in drawing the line between the regulated area and unregulated uplands
Corps Permitting Process
Corps authorizes two types of permits
(1) General Permits--Nationwide and regional; automatic authorizations of certain categories of activities
-For such activities, except those affecting wetlands and a few others, the person may proceed w/o notifying the corps

(2) Individual Permits
-May necessitate an EIS
-Most applications are granted, but many are significantly modified during the review process

-The first step in the process involves a "public interest review"-->An evaluation of the probable impacts and cumulative effects on the public (Corps Reg. §320)
Judicial Review of COrps. Permit Decisions
Allowable under the Administrative Procedure Act

-Challenged agency action must be set aside if found to be "arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with the law"

In General
-An agency's action is normally held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem

-Ensures that the agency has considered the environmental consequences of its proposed action
-Need only find that the agency considered the environmental consequences of its proposed actions. If an agency decides that the economic and social benefits of a project outweigh its environmental costs, its choice must be affirmed so long as the procedural requirements of NEPA were followed-->environmental consequences were considered

-Requires that the impact on the aquatic environment be considered
-The CWA prohibits an agency from sanctioning a project that it finds will have significant adverse impact on the marine environment
Remedies for Violations of the RHA and CWA
1) Cease and Desist--First step in 404 enforcement will be either an EPA administrative compliance order, or a cease and desist letter sent by the Corps to the alleged violator

2) Administrative Penalties--Agencies may impose administrative penalties for violations--Most enforcement authority is vested in the EPA which may impose penalties for unpermitted violations of 404

3) Criminal and Civil Penalties--RHA and 404 permit the imposition of criminal penalties in some circumstances; 404 also provides for the imposition of civil penalties

4) Equitable Relief
-Injunctions--The grant or denial of a preliminary injunction is a decision within the sound discretion of the trial court. On appeal, the court considers the trial court's decision under the abuse of discretion standard

-The court must exercise its discretion in light of the following four prerequisites for a preliminary injunction
(1) A substantial likelihood that π will prevail on the merits
(2) A substantial threat that π will suffer irreparable injury if the injunction is not granted
(3) That the threatened injury to π outweighs the threatened harm the injunction may do to ∆, AND
(4) That granting the preliminary injunction will not dis-serve the public interest

-Restoration Orders-
EX: Man fills in area to create a road to his house-->Removal of road would confer "maximum environmental benefits," would be "feasible and cost effective," and be "equitable in relation to the wrong committed."
State Regulation of Wetlands Activities
§401 of the CWA--Applies to wetlands b/c they are "navigable waters" w/in the meaning of the CWA

• Any applicant for a federal license or permit to conduct any activity which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the state in which the discharge originates or will originate that any such discharge will comply with state effluent limitations and water quality standards promulgated in accordance with other sections of the CWA
• If the state denies the certification, the denial acts as an absolute veto of the federal license or permit application
• The state decision is thus reviewable only through the state courts
Eastlake Community Council v. City of Seattle
-Permit authorized building of offices on the shores of a lake, and provided there would be a rowing club on the 1st floor.

• Eastlake wanted strict adherence to the statutory language of the Shoreline Management Act which says in their mind the proposed offices must be an integral part of the water dependent use, or the entire project must provide for substantial public access to the shoreline

o Previously however, the court mad a more relaxed ruling when an Elk’s club wanted to build a lakeside lodge saying that it was enough because the lodge would not have detrimental effect upon the shoreline and it provides an opportunity for substantial numbers of people

• The court takes the more lax standard, and considers it OK for an office building to be lakeside→however, in order for this development to proceed, it does have to use the bottom floor for the rowing club, and without it the permit will be revoked
Innovative policies to preserve water dependent uses
o Use tax valuation based on the income-producing capacity of the existing use
o Tax abatement
o Public financing for infrastructure required by water dependent users such as piers, marinas, etc.
o Zoning laws which protect traditional uses from encroachment
o Public acquisition of critical parcels in fee or less than fee purchases
o Transfer of development rights to surrounding non-waterfront lands
Kroeger v. Department of Environmental Protection
-Kroeger applied for a dock and was denied by the EPA--His permit had only failed 2 of the 9 requirements
o It would unreasonably interfere with existing scenic, aesthetic, recreational, or navigational use→EPA says there are alternatives to what he proposes that do not drastically alter the landscape of the sound
o Also failed the “harm to habitats” standard

-->Things will be denied if there is a viable alternative--they will still be denied if every alternative results in unreasonable impact on the wetland
Cumulative and Secondary Impacts in relation to the CWA
-The incremental degradation associated with multiple projects spread over time
-How a particular project will affect, interact, and combine with other projects over time
Conservancy v. A Vernon Allen Builder
o Proposed sewage pipeline installation in order to accommodate potential development on an underdeveloped island
o The secondary impact looked at was the potential development that would come from installing the pipeline
o “Secondary” impacts are those that may result from the permitted activity itself, and “cumulative” impacts are impacts that may result from the additive effects of many similar projects
o These are things that should be factored in all the time
• Recreational beaches are such an integral part of a local or state economy that restoration is an economic necessity. The high cost of this management technique is justified by the revenues created by the beaches. The process is not only expensive, but also perpetual
o Restored beaches require renourishment approximately every three years
o Available shore protection measures do not treat some of the underlying causes of erosion, such as relative rise in sea level and interruption of sand transport in the littoral systems, because they necessarily address locale specific erosion problems rather than the underlying systematic causes
• A term that encompasses seawalls, rip-rap, and other fixed structures intended to stabilize the shoreline
• Armoring may increase the rate of erosion of adjacent beaches
• Armoring is not a preferred management technique, but is often the only solution when a storm leaves a structure teetering on the brink of destruction
South Carolina v. Dept. of Health & Env. Control
o Person applied for permit to construct groin
o Whether the Beachfront Management Act of the state prohibited the proposed construction
o The Beachfront Management Act was passed in response to the incredible amount of erosion that was occurring on South Carolina beaches
• The Act promoted gradual retreat from the beachfront over a 40 year period
• Generally there are three ways to fight beach erosion: armoring, renourishment, and retreat
• The language in the statute is opposed to using measures which call for building erosion control devices out into the water
• This section of the statute precludes OCRM from issuing permits for the construction of refurbishment groins
• Although there is now explicit language in the statute that mentions the building of a groin, the legislature meant to exclude the building of these structures
• A later statute was passed to include groins
o The BMA prohibits DHEC from issuing permits for the construction or reconstruction of groins
• Necessary where beach systems are so dynamic that neither restoration nor armoring is feasible, when the economic costs of restoration cannot be justified, or when environmental concerns outweigh justifications for armoring or restoration
• Retreat may involve strict construction regulations within the sensitive zone or a complete construction prohibition
• Retreat strategies generally apply only to undeveloped beachfront property. Existing development is usually grandfathered in to lessen the impact of the regulations
o Two problems exist in grandfathering
• 1) In areas that were almost fully developed prior to the new regulation, new prohibitions on development that apply only to the remaining undeveloped lots may be unreasonable
• 2) Relates to the determination of when they may become subject to the new regulatory scheme
• New limitations on rebuilding structures that are “destroyed beyond repair” and originally banned their reconstruction within the dead zone or seaward of the baseline
o Destroyed beyond repair – More than 66.66% of the replacement value of the structure has been destroyed

• National Flood Insurance Program (NFIP)
o Intended to reduce federal flood disaster relief by supplying guaranteed flood insurance coverage to communities that adopt building standards and land use controls that minimize flood damages and property losses
• The program also imposes penalties for nonparticipation
Coastal Barrier Resources Act (CBRA)
• Prohibits federal funding of any project that would enable development on designated protected barrier islands
• Goal is to preserve the natural resources of coastal barrier islands, minimize danger to human life from poorly located coastal barrier development, and to end federal support for such development
• Without such federal assistance, the costs of development and the risks of development must be borne by the developer and the purchaser of newly developed coastal barrier island property
Nollan v. California Coastal Commission
• Nollans wished to build a three bedroom house along the seawall, and the Coastal Commission granted them permission to do so only on the condition that they record an easement on behalf of the public to pass along the beach→Nollans were not too happy about this and said that it was an unjustified taking
o Scalia says it would have only been a taking if the State had required the Nollans to create an easement across their beachfront permanently to increase public access
o Land use regulation is OK if “it substantially advance[s] legitimate state interests and does not deny an owner economically viable use of his land”
o Scalia finds that the states reasons are poor, so he says that if California wants to impose an easement, they must pay for it
Dolan v. City of Tigard
• Reinforced Nollan and further defined the essential nexus as a rough proportionality between the dedication of property and the nature and extent of the impact of the proposed development
Beach Nourishment and Public Access
• Federal funds may not be used to restore or nourish private beaches. To qualify for funding, the beaches must be opened to public use
• The term “public use,” particularly of private property, means recreational use by all on equal terms and open to all regardless of origin or home area. Prohibited is any device for limitation of use to specific segments of the population, such as local residents, or similar restriction on outside visitors, directly or indirectly. This definition allows a reasonable beach entrance fee, uniformly applied to all, for use in payment of local project costs. Lack of sufficient parking facilities for the general public located reasonably nearby and accessible to the project beaches or lack of pedestrian right-of-ways to the beaches at suitable intervals would constitute de facto restriction on public access and use of such beaches, thereby precluding eligibility for Federal assistance

o Adequate Access for the Disabled
• ADA requires that new facilities constructed after January, 1992, by or on behalf of, or for the se of a public entity shall be designed and constructed in such a manner that the facility is readily accessible to an usable by individuals with disabilities
• Adequate access encompasses not only an unobstructed path to the beach, but also includes access over the surface of the beach to the mean high tide line
Two Types
(1) Physical Takings-When the government physically occupies all of the property. This is the straightforward takings claim
(2) Regulatory Takings-BROADLY, if a regulation causes so far as cause an interruption between the owner and use that is usually afforded to property owners, it would be a regulatory taking
Lucas v. South Carolina Coastal Council
• Lucas purchased two lots on the coast, but was unable to build on them after the passing of the Beachfront Management Act in 1990, rendering his land valueless
• Issue: Was this a taking of private property without payment of just compensation under the 14th Amendment?

• Analysis:
o There are two situations which describe compensable regulatory action
• Regulations that compel the property owner to suffer a physical invasion of his property
• No matter how minute the intrusion, there is always compensation
• Regulation denies all economically beneficial or productive use of land
• 5th amendment is violated when land use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land

o When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, he has suffered a taking
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