2008

In a significant development and unexpected move, the Solicitor General has filed in the U.S. Supreme Court an amicus brief on behalf of the United States strongly supporting the State of Hawaii’s position in the ceded lands case, asserting the Apology Resolution was “hortatory, not substantive,” and that the ceded lands trust is supposed to benefit all, not just one of five classes of beneficiaries. 

The brief is available here. The Court generally pays special attention to arguments made by the SG (who is sometimes known as the “tenth Justice”), especially its amicus positions.

The brief makes the point that the United States had undisputed and unclouded title to the ceded lands, and that interest was conveyed to the State in 1959 at statehood:

The Supreme court of Hawaii misread the Apology Resolution to reverse a century’s worth of federal law and policy governing the United States’ 1898 annexation…

Continue Reading Federal Government in Ceded Lands Case: Sorry Seems To Be The Hardest Word

In an significant development, on December 11, 2008, the Solicitor General filed an amicus brief in the ceded lands case now pending before the U.S. Supreme Court. We’ll post the brief shortly. The federal government’s participation was not expected. 

This amicus brief has the potential to influence the Court, as the Solicitor General is sometimes known as the “tenth Justice,” because of the attention the Court pays to his arguments. Continue Reading Ceded Lands Case: Federal Government Files Amicus Supporting Hawaii

Thanks to Professor Patty Salkin for posting a summary of the Hawaii Intermediate Court of Appeals decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), in which “the court concluded, a private citizen does not have standing to enforce the land-use law, because such authority is not explicitly or implicitly contained in the law, and implying such authority would be contrary to the legislature’s intent in enacting the law.” 

Pono has since applied to the Hawaii Supreme Court for a writ of certiorari, asserting that the statewide zoning law is a “law relating to environmental quality.”  We filed filed a response for Molokai Ranch. Both briefs are posted here. 

Also of interest is the recent New York Times story about land use issues on Molokai.Continue Reading Intermediate Court of Appeals Land Use Decision Summarized

The Grassroot Institute of Hawaii and the Southeastern Legal Foundation filed an amicus brief in the Hawaii ceded lands case, available here.  The brief argues:

Hawaii is justly admired as an integrated, racially blended society. It has been called a model for the rest of the country, perhaps for the world. But some people in Hawaii find no comfort in integration and equality. For over two decades, a counter-current promoting special privileges for persons of Hawaiian ancestry has gradually developed and, to some extent become the accepted norm among those in Hawaii with a vested interest in continuing such racial distinctions between citizens. This case is just a glimpse of the internal forces working to destroy the ideals of aloha and equal opportunity for every individual whatever his or her ancestry, embraced by the founding fathers of both the Kingdom of Hawaii (Kamehameha I, II and III) and the…

Continue Reading SCOTUS Ceded Lands Case: Another Amicus Brief

The brief of the Commissioner of Public Lands for the State of New Mexico is posted here.  The brief of the Center for Constitutional Jurisprudence is posted here.

The New Mexico brief explains:

Because the express trust created under the Hawaii Admission Act was based on principles established in the New Mexico and Arizona Enabling Acts, the Commissioner is well situated to provide background and analysis regarding the federal law issues raised by the Hawaii Supreme Court’s unprecedented injunction barring state alienation of lands held in a similar federal law trust.

Brief at 2-3. The Center’s brief argues:

This case raises the question of whether Congress can impose limits on the sovereign powers of states—long after the states have been admitted into the union. As interpreted by the Hawaii Supreme Court, the resolution adopted by Congress achieved that limit on state power. The state court acted in what…

Continue Reading More Amicus Briefs in SCOTUS Ceded Lands Case

Today, we filed an amicus brief in the ceded lands case on behalf of Pacific Legal Foundation, the Cato Institute, and the Center for Equal Opportunity, available here.

The core issue of this case is whether a state court, interpreting federal law, may enjoin the State of Hawaii from exercising its sovereign authority to sell,
lease, or rent the “ceded lands” for the benefit of all Hawaiian citizens, pending some resolution, as yet unknowable, of the claims of native Hawaiians to those lands. As this Court recognized in Rice, 528 U.S. at 505, the Republic of Hawaii ceded all of its former Crown, government, and public lands to the United States upon annexation in 1898. Revenues from the public lands were to be “used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.” Newlands Resolution, J. Res. 55, 55th Cong.…

Continue Reading Ceded Lands Case: Pacific Legal Foundation, Cato Institute, Center for Equal Opportunity Amicus Brief

The Mountain States Legal Foundation, “a nonprofit, public-interest law firm . . . dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberties, the right to own and use property, the free enterprise system, and limited and ethical government” today filed an amicus brief in the Hawaii ceded lands case, now pending in the U.S. Supreme Court.  The brief is available here. 

The brief argues:

The State of Hawaii did not argue that, if this Court construes the Apology Resolution to confer special benefits on persons of Hawaiian ancestry, the
Resolution is unconstitutional because it violates the Equal Protection Component of the Due Process Clause of the Fifth Amendment. Nonetheless, this is one question the Court must answer in construing the meaning and effect of the Apology Resolution. A universal rule of statutory construction is that “statutes should be construed whenever possible…

Continue Reading Ceded Lands Case: Mountain States Legal Foundation Amicus Brief

Overlawyered (chronicling the high cost of our legal system, it proclaims its mission to be) posts an item about the Bulldozed case, which we mentioned earlier today. In Royall pain to his critics, Walter Owens references a post by Jacob Sullum at Reason, and writes:

I can’t go on. I just can’t. I’m so scared of Royall that I can’t even repeat the colorful epithets that Sullum might apply to Royall if hedared (which he doesn’t) for fear that Royall will then find someexcuse to sue me too.

Also, Tim Sandefur at PLF on Eminent Domain has posted his thoughts on the case here.Continue Reading Overlawyered on Bulldozed: Royall pain to his critics

Bulldozed_home Following up on our earlier post, “‘No, I’m Spartacus!’” about the latest foul turn in the Bulldozed saga, the Institute for Justice (the folks who represented Susette Kelo) today announced that they are representing Carla T. Main, Bulldozed‘s author, in the defamation suit filed against her and and lawprof Richard Epstein (who had the temerity to review her book positively).  We reviewed Bulldozed here.  The IJ released this statement:

Dallas, Texas—Inperhaps the most striking example of a disturbing national trend,Dallas developer H. Walker Royall has launched a lawsuit spree tosilence any media or public affairs commentator who dares expose hisattempted abuse of eminent domain.  Similar suits have been filed inTennessee, Missouri and elsewhere by developers and governments lookingto silence critics of eminent domain for private gain.  

Royallworked with the city of Freeport, Texas, to try to condemn agenerations-old shrimp business owned by the Gore

…
Continue Reading The Fifth Amendment is Not Enough: Bulldozing Free Speech

Let me make sure I am understanding this properly: a property owner does the right thing under the rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and brings her federal regulatory takings/inverse condemnation claim in state court because its not yet ripe in federal court, but the city removes the case to federal court on the basis of “arising under” jurisdiction (in other words, the case could have been brought in federal court in the first instance), and then moves to dismiss the federal claim on the basis that it’s not ripe in federal court, and both the district court and the court of appeals don’t bat an eye?

That’s my read of one of the issues in Snaza v. City of St. Paul, No. 08-1604 (8th Cir. Dec. 12, 2008), where the court held:

Snaza brought this action…

Continue Reading Procedural Chutzpah: Williamson County in Action