Here are the materials from today’s discussion:
Continue Reading Hawaii Farm Bureau Federation: Materials From Friday’s Discussion
Farmers and ranchers should be aware of a new law passed by theLegislature last session that adds another layer of protection forHawaii agriculture.
A new section was added to the Land Use Law (chapter 205) requiringthat before the State Land Use Commission approves a petition for a“boundary amendment” (a change in the state’s land use designation fora parcel), for lands “contiguous or adjacent to” land designatedagricultural, it must include two conditions.
First, the conditions must prohibit any action that would interferewith or “restrain” farming operations, as long as those farmingoperations are consistent with generally accepted agricultural andmanagement practices. This requirement mirrors the language in Hawaii’sRight to Farm Act, which prohibits nuisance lawsuits against farmersand ranchers who employ generally accepted practices. In other words,farmers and ranchers determine what are the best agricultural andmanagement practices.
“Farming operation” is also defined by reference to the Right to FarmAct, which defines the term broadly…
West Hawaii Today reports on yesterday’s oral arguments in the Supreme Court of Hawaii in County of Hawaii v. Richards, the appeal from two eminent domain actions on the Big Island of Hawaii. [Disclosure: my Damon Key colleagues Ken Kupchak, Mark Murakami, and Christi-Anne Kudo Chock and I represent the property owners.]
“These arguments are not about a road. They’re about the law,” said Robert Thomas, an attorney for the trust. “Thegovernment in cases of eminent domain has a huge advantage. It createsthe facts. … If they lose, they’re not prohibited from trying againand again and again.”
. . . .
Hawaii County lost its first condemnationlawsuit when a Circuit Court judge found the condemnation served moreof a private purpose for Oceanside than a public purpose, as isrequired before government can take land by force. The county, under anew County Council, amended its condemnation plan, adding another …
Interesting decision from the California Second District Court of Appeals in Manufactured Home Communities, Inc. v. County of San Luis Obispo, No. B196426 (Oct. 15, 2008). The case involves a writ of administrative mandate (administrative appeal for you non-Californians) reviewing the decision by the county Rent Review Board denying a request to increase the rent in a mobile home park.
What’s interesting about the decision is not the result (basing a decision on the testimony of witnesses not subject to cross-examination surely violates even the often loose evidentiary rules in administrative hearings), but the court’s opening paragraph:
The Constitution protects everyone, the poor, the wealthy, the weak, the powerful, the guilty and the innocent. This court has held its guarantees extend to lawyers (Cunningham v. Superior Court (1986) 177 Cal.App.3d 336); dogs (more precisely their owners), (Phillips v. San Luis Obispo County Department of Animal Regulation (1986)…
Continue Reading California Court of Appeals: Property Owners Have Constitutional Rights!
You snooze, you lose. That’s the lesson from Turnacliff v. Westly, No. 07-15287 (Oct. 15, 2008), where the Ninth Circuit rejected a claim that California’s escheat statute, which sets a rate for interest on abandoned property, violated the Takings Clause. The owner whose abandoned property was eventually returned (with statutory interest) claimed that the state had a constitutional obligation to use some form of market rate for calculating the interest.
The court assumed the existence of a property right in interest earned on escheated property, but held that because that property itself had been abandoned, the owner had forfeited any property claim in the interest on the property. The owner got its money back, with interest, and the court held the owner
. . . has no Fifth Amendment right to “actual” or “constructive” interest earned by its property while held by the State; California need not further compensate…
Continue Reading Ninth Circuit: No Taking of Interest on Abandoned (Escheated) Property
You may have been wondering why we’ve been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy’s use ofsonar, because the Court has been asked by the government and amici toexamine the standards applicable to injunctions in NEPA cases.
Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue — when the courts should defer to the judgment of the other two branches — is important.
The first is “Did Environmental Quibbling Facilitate the Attack on …
You have to wait until the government enacts a lousy law before you can run to court to challenge it.
That’s the lesson from Stonehouse Homes v. City of Sierra Madre, No. B195552 (Oct. 9, 2008), in which California’s Second District Court of Appeals held that a lawsuit challenging the city’s “moratorium resolution” was not ripe for judicial review. In the moratorium resolution, the city stated it was considering amending an existing zoning ordinance regarding minimum lot sizes in the city’s “Hillside Management Zone.” The city is “located in the steep hillsides of the San Gabriel Mountains northeast of Pasadena.” Slip op. at 2.
The complaint alleged the moratorium resolution violated the plaintiff’s due process rights, among other issues. The city demurred because the resolution was not a law, but rather was a notice of a potential change in the city’s zoning code. Slip op. at 5. The trial…
Continue Reading California Court of Appeals: Development Moratorium Challenge Not Ripe
The US Supreme Court heard oral arguments today in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast. My Damon Key colleague Mark Murakami has posted a copy of the transcript on his hawaiioceanlaw blog here and also points out that one of the questions by Chief Justice Roberts captured the essence of the amicus brief he and I filed on behalf of nine admirals and several civic organizations:
CHIEF JUSTICE ROBERTS: I think that’s — I think that’s quite right. My question, though, is that at no point that did the district judge undertake a balancing of the equities, putting on the one side the potential for harm to marine mammals thatshe found — and that’s your point about the record — and putting onthe other side the potential…
Just a couple of days before oral argument, the U.S. government has filed its Reply Brief in the U.S. Supreme Court case involving the Navy’s use of sonar off the California coast. We filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups, posted here.
My Damon Key colleague Mark Murakami has posted a resource page about the case, with links to all of the briefs and selected media coverage here.Continue Reading Government Reply Brief in Navy Sonar Case
The title for today’s editorial in the Honolulu Star Bulletin about the “ceded lands” case now before the U.S. Supreme Court says it all: “Court should reverse freeze on land sales.”
The Lingle administration should be encouraged by the U.S. SupremeCourt’s decision to review an unconscionable state ruling thatprohibits the sale or transfer of virtually all state-owned land inHawaii. Overturning of the ruling would restore the successful formulafor devoting part of the land sales revenue to improving conditions fornative Hawaiians.
The complete editorial is posted here. Visit our page which contains links to the briefs, the Hawaii Supreme Court decision, and media reports on the case. Continue Reading Honolulu Star Bulletin: Court Should Reverse Ceded Lands Case