Reading Property Cases

“It’s time,” I said to myself over the weekend… Time to start writing about specific property cases here at the blog. No, not cases the Supreme Court is hearing, but rather historically important ones, or those that are important to contemporary policy. Logan is working away on a pile of case law, and I’ve been gathering my notes together to give you another approach to them… We have been planning this for a while, talking about it for longer. Yet dragging our feet just a bit.

Part of my trepidation comes from knowing what it’s like to tackle this case law and thinking about my readers and how to present them to you. See, when I was a graduate student, I told my soon to be dissertation advisor (Professor John Brigham of UMass-Amherst — a great and wonderful dissertation advisor) that I wanted to do work in environmental law and policy. Because of the structure of my discipline (Political Science), he suggested that I should “look for the environment” in constitutional law and see where I could find it in the realm of constitutional politics. It was 1997, and I had just moved to Massachusetts from Utah, where I had spent some time as a temporary worker in the financial reporting section of a major mining company. Between that experience and the poking around I did to see what hot topics were “out there” involving constitutional politics, it did not take me long to decide to study property rights and takings litigation. At the time, the property rights movement was well into it’s second decade (depending upon how you want to count, maybe it’s third), and litigation mobilizations to advance private property rights were springing up all over the place. However, before I could really look into those politics, I had to read property law, specifically that dealing with land use and environmental regulation.

I tackled it for the first time during the quiet and snowy January break between semesters my first year of graduate school. I was living in western Massachusetts, so when I tell you it was snowy, it was very very snowy. I grew up in Minnesota, so I look on snowy days as excellent study and reading time. Thus, bright and early one morning I trudged over to my office and I got out the cases I had collected over the few weeks before in preparation for this immersion into case law. I remember looking forward to spending a day reading and taking notes. I imagined finishing up in the late afternoon with a sense of accomplishment and a pile of finished cases on the corner of my desk where I kept the “done” work.

Within two hours I was in tears.

Four hours later, I was weeping.

I could not understand anything I was reading.

I thought I was a complete idiot.

I had spent the entire day struggling with regulatory takings doctrine and though I had attempted to read more than one case, really and truly, none were read well enough that I could have told you what I’d read. I went home, leaving everything on my desk at the office in heaps and piles — a habit I developed in grad school and still maintain when I’m in the midst of a writing or research project — because when quitting time comes, I make a note about what to do the next day and then I quit. That evening I had a nice dinner, took a hot bath and watched television. I climbed into bed feeling exhausted. All I could think was how ridiculous I was to think I could do this thing — get a Ph.D.! Focus on the politics of property rights! It would never happen! And surely I shouldn’t be reading about regulatory takings cases because my brain simply did not function on a level required for this work.

Still, the next morning, I put on my snow boots and heavy coat, but instead of going to my office I trudged into town, which was a little over a mile walk through the neighborhood Robert Frost lived in while in Amherst. It’s filled with beautiful old, huge trees and pretty old houses, and a foot and a half of snow. It was quiet, and I made a list of what I was going to hunt down. My first stop was at the drugstore — I purchased a large bottle of aspirin (my students will attest that I still keep a bottle in my office). Next I headed to the bookstores. I bought a Black’s Law Dictionary, an old property case law book, an environmental case law book, and anything at the used bookstore involving the words “property”, “takings”, and “land”. It was a sizable purchase of heavy books. Oh, and property books are not thin little volumes. They are usually thick, massive tomes. I lugged them through the snow back to my office, enjoying the fresh air and knowing I was getting a decent workout.

Once I’d settled back in at my desk with a strong cup of tea, I grabbed the first of the property cases in the pile on my desk I’d left the day before, and got started.

I would figure this out.

I would.

Watch me.

I learned quickly that I needed to begin by doing a very quick skim of the case, locating what I thought were key words. I used a pencil and circled them — sometimes, later, I would realize I’d missed important concepts, or had circled things that weren’t all that important. I’d erase or mark anew. Then, one by one I looked the words up in Black’s. By looking at the words and letting myself explore the other (incomprehensible) words in the definitions, I gained a sense of the network of words that went together in the case. Next, I looked to see if there was any commentary on the case in any of my “new” used books…

Why not just Google it, you ask? Well, it was January of 1998. Google wasn’t then what it is now… This was old school learning: skim, terms, commentary, then back to the case, more careful reading, take it a paragraph at a time, figure out what had happened and why the case was important, outline the facts, figure out how they fit together. Repeat for each case. If I had to spend a whole day or even two on one case, that’s what I would do.

Very soon I had to make another trip into town. This time, I bought an atlas. I still keep an atlas or maps nearby when reading land use and environmental cases because I invariably need to see *where* the case occurred. In grad school, more detailed maps were available at the library — and I realized sometimes my best bet for understanding a property case was in the map room. I learned to read all kinds of maps. Finally, after a lot of work, those cases started to fit together.

By the time school started the first week of February, I reported to my dissertation advisor that I had, in fact, found my topic.

I decided to write this story to give you a bit of a head’s up…  Logan and I are going to be doing a series of posts this year on property cases. I will post the first one in the next couple of days. The case is Annicelli v. South Kingstown (463 A.2d 133, 1983). The law scholars in the crowd may remember it buried in the citations of Lucas v. South Carolina Coastal Commission (505 U.S. 1003, 1992). It’s an interesting case in part because it involves zoning ordinances designed to protect against high flood danger and changes to flood plain maps. It’s also a nice reminder that a lot of the federal regulatory takings cases begin in the states and often involve this sort of issue. Indeed, if we take seriously the idea that we can learn from the past, then cases like Annicelli may be instructive in many ways in our discussions about flood plain maps and NFIP reform. And also, it’s just an interesting case.

Watch for it in a couple of days — for anyone who wants to review Lucas, a link to a version of the case is here.  And Annicelli can be found here.

Reading Around the Internet

I am so sorry we haven’t been able to post this week on our regular schedule. My mom had a total hip replacement, and I’m with her, helping out. But, that doesn’t mean I haven’t done any reading. There’s several issues I’ve been tracking for some time that showed up in my news feeds this week:

River Training Structures in the Mississippi

The question of whether the US Army Corps of Engineers should install river training structures in the area has been discussed for years. The Corps recently held a public meeting concerning the Environmental Assessments for the Grand Tower Phase 5 Project and the Dogtooth Bend Phase 5 project, both of which are part of the St. Louis District’s Regulating Works Program. The Grand Tower project is located in the Middle Mississippi River near Cape Girardeau County, MO and Union County, IL, near the city of Cape Girardeau. The Dogtooth Bend project is located in the Middle Mississippi River near Scott and Mississippi County, Missouri and Alexander County, IL (about 3 1/2 miles downstream from Commerce, MO). How this would affect the levees in the area remains a question in the minds of many in the area who oppose these projects. The concern is that the training structures would increase the pressure on the levees during high water, making flooding a greater danger in the area. The Corps, however, believes that the river training structure would decrease the need to dredge and add to the natural scouring of the river bottom. Less dredging, they believe, would also damage natural wildlife habitats.

The public comment period (including submission of written comments) ends March 7th. Corps’ draft environmental assessment for the Dogtooth Bend Phase 5 can be found here, and environmental assessment for the Grand Tower Phase 5 project can be found here. Local Channel 6 covered the February 19th meeting, and included the address for written comments as well as the deadline.

Agriculture and Flooding

Once again, analyses of what, if any, agricultural losses were suffered by farmers during the 2011 flood is the subject of research at the University of Illinois. Professor Ken Olson at the U of IL has published a study of the impact of the floods on southern Illinois Agriculture, which is nicely summarized here by Cattlenetwork.com.

Reading about flooding and farming always sends me out to look for other information. The EPA has a page with advice for farmers and agricultural landowners.  You can find it here. Also, All Hazards also has some interesting thoughts about how to plan for flooding here.

The Cost of Rebuilding

Want to know how much recovering from a disaster costs? Well, it varies, frankly, by location and what type of recovery is needed. For example, the Insurance Journal is reporting that more than $267 million dollars (state/federal assistance) has been received by Colorado survivors of the September 2013 flooding. Much of that has been in the form of disaster grants, flood insurance payments and low-interest disaster loans (more than $219 million), and another $48 million has been promised by FEMA for further assistance.