September 2007

To my colleagues at the LINC conference in D.C., thank you for the opportunity to present the topic.  Here are links to the cases discussed:

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Continue Reading ▪ Links for “Progress in Protecting Property Rights Post-Kelo“

The question of “which came first, the Environmental Assessment exemption or the challenge?” is providing an interesting illustration of the metaphysical issue of what is the impact of a government act subsequently ruled to be illegal.

In denying the plaintiff’s request for a temporary restraining order, the Fifth Circuit court did not rule on the defense raised by the State and Hawaii Superferry to the Kauai lawsuit objecting to the State’s exemption of the Superferry from completing an Environmental Assessment under Haw. Rev. Stat. ch. 343.  However, as a question that likely goes to the court’s subject matter jurisdiction, the issue must be dealt with, eventually.

The statute of repose in chapter 343 provides for a 120-day challenge period that starts with the agency’s decision to either “carry out or approve” the action.  Haw. Rev. Stat. § 343-7(a) provides:

Anyjudicial proceeding, the subject of which is the lack of…

Continue Reading ▪ The Metaphysics of the Kauai Superferry Statute of Repose

Jay Fidell at ThinkTech Hawaii (Hawaii Public Radio KIPO-FM89.3) posts the podcasts of UH Law School dean and professor Avi Soifer’s appearance on the topic of “Pushing the constitutional envelope – how quickly, if at all, can it snap back.”  It’s not about land use and related topics, but worth listening nonetheless for anyone interested in the role of the courts in protecting constitutional rights. 

Sidebar: One of the more interesting law review articles I’ve read lately is Dean Soifer’s Courting Anarchy, 82 Boston U. L. Rev. 699 (2002), which criticized the U.S. Supreme Court’s Bush v. Goredecision, and analyzed the corrosive effect on judicial legitimacy whencourts make nakedly political decisions.  Speaking of that case, The WallStreet Journal’s law blog has this interesting tidbit: Continue Reading ▪ Podcast: UH Law School Dean on “Pushing the Constitutional Envelope” (mp3)

The Ninth Circuit panel summarizes its decision:

A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve—which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve.  See Pub.L. No. 108-87, R. 12.1, 12.4 §…

Continue Reading ▪ Ninth Circuit: Land Swap of Cross on Federal Land Violates Establishment Clause Injunction

Charley Foster at Planet Kauai has written up the details of the Superferry TRO hearing on Kauai.  Check it out.

Update: Here’s his detailed report.  The critical issues appears to be the 120-day statute of repose to institute challenges under Haw. Rev. Stat. § 343-7(a):

The plaintiffs seemed to view themselves as essentially in the same position as the Sierra Club in its recent successful injunction motion on Maui. However the court expressed its doubts and pointed out that, unlike the plaintiffs here, the Sierra Club filed an objection to the exemption granted Superferry by HDOT two and a half years ago and within the 120-day period required under section 343 of HEPA. Judge Valenciano pointed out that the supreme court’s decision made special mention of this fact – explicitly placing the event triggering the clock on this time limitation back to the grant of the exemption…

Continue Reading ▪ Planet Kauai Blogs the Kauai Superferry TRO Hearing

Here is a collection of all the inversecondemnation.com posts on the Hawaii Superferry litigation:

Case documents —

Commentary and analysis —

Continue Reading ▪ Hawaii Superferry EIS Case Posts

“In a democracy, the people get the government they deserve” states the old dictum.  That pretty much sums up one response to The Wall Street Journal story This Side of Paradise about the “Ohana Kauai” property tax charter amendment case.  A WSJ reader proposes: “It’s Simple: Vote Them Out.”

The need to restrain local taxation in Kauai may be compelling; butthere is another, and undiscussed, option. Vote out the recalcitrantmayor and/or governing council and replace them with officials for whomcontrolling the level of taxation is a high priority. Who knows? Facedwith the broader issues of local government, Ohana Kauai’s voters maybe able to impel all manner of improvements in local policy andadministration.

Full story here. 

He’s got a point, of course.  Removing unresponsive elected officials from their positions, either by voting for the other guy in the next election or by recall (the Kauai Charter provides…

Continue Reading ▪ Getting the Government They Deserve — “Ohana Kauai” Solution Proposed

In “How Eminent Should Domain Be?,” the NY Times writes about an official in a Westchester County town who understands the connection between property rights and constitutional rights, especially in the involuntary taking of property by the government:

The United States Supreme Court ruled in 2005 that a governmentcould use eminent domain to seize private property for economicdevelopment, including commercial uses like malls. (Some of theproperty for the new headquarters of The New York Times was acquiredthrough eminent domain.) Mr. Bianco felt the ruling was wrong, evenun-American, violating the near-sanctity of a place of one’s own. Sodid fellow townsfolk who asked him, as a member of the Town Council:“Will you ever do that?”

“Not on my watch,” he promised.

LastJanuary, he went further and engineered passage of a law barring thetown from condemning private property for commercial purposes, whileallowing it for traditional public uses, like the building of…

Continue Reading ▪ NY Times on Property Rights as Constitutional Rights