2009

U.S. Supreme Court cases — especially when they arise in your back yard — always garner a lot of attention, and the ceded lands case being argued on Wednesday, February 25 is no exception.  Here’s a run down of the latest:

  • The Sunday Star-Bulletin ran a front-page above-the-fold story, “Battle over ceded lands.” (“But native Hawaiian groups fear that the U.S.Supreme Court might go beyond whether the state can sell the lands anddeclare that the state has unfettered rights to the ceded lands thatwould undermine native Hawaiian claims to the property. NativeHawaiian groups also believe that if OHA prevails and the ban is leftintact, they would be in a better bargaining position for a settlementbecause the state would be hamstrung with the restriction on sales andtransfers.ClydeNamuo, OHA executive director, said such an outcome would give”leverage for the native Hawaiian community” and also preserve the landas a source for

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Continue Reading Another “Ceded Lands” Case Round-Up

Eminent domain in the news:

It’s a stark contrast between new and old, progress and past. The tension between the two has landed the university in the middle of a lawsuit that could set a precedent for redevelopment projects under way in Virginia.
A year ago, Norfolk’s Redevelopment and Housing Authority moved to condemn the house and three other buildings to the south of ODU’s University Village, saying the land was in a blighted area and is needed for the university’s expansion.
The owners responded with a suit, saying the housing authority has no right to take their property, in part because the development of University Village in the past decade has cleaned up the blight.
The property owner’s lawyer is my Owner’s Counsel of America colleague Joseph Waldo.

Separately, [Carol] Browner [President Obama’s special advisor on climate change and energy] said the administration was also going to create an inter-agency task force to site a new national electricity transmission grid to meetboth growing demand and the President’s planned renewable energy expansion.Siting has been a major bottleneck to renewable growth, and lawmakers andadministration officials have said they’re likely to seek greater federal powersthat would give expanded eminent domain authorities.Continue Reading Eminent Domain Round-Up

Thanks to @georgettedeemer, the Communications Director of the Hawaii House of Representatives for getting word out that the Hawaii House has passed S.C.R. No. 40, a resolution “Urging the Governor and the Attorney General to withdraw the appeal to the United States Supreme Court of the Hawaii State Supreme Court decision, Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 117 Hawaii 174 (2008).”  It is being reported that the measure passed, but with 23 “with reservations” and two no votes.

This of course involves the “ceded lands” case. [Disclosure: we filed an amicus brief in the case, supporting the State’s arguments.]  This resolution is symbolic, since the Lingle Administration has never appeared to possess any inclination to withdraw the state’s request for SCOTUS review, especially after expending a huge amount of legal capital to get the Court to consider the case…

Continue Reading Hawaii House Passes Resolution Urging “Withdrawal” Of The “Ceded Lands” Case

It’s easy to blog a case when you or your colleagues win it, and we’ve had plenty to talk about lately in that department in eminent domain and zoning law.

On the other hand, it’s not so easy to write about a case when you don’t prevail. Today is one of those days. The U.S. Supreme Court declined to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (the California court’s slip opinion available here). The Supreme Court’s Order List denying review is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We (and others) filed amicus briefs, urging the Court to review the case. Our brief is posted here. The two Questions Presented…

Continue Reading Cert Denied In Ripeness And Penn Central Case

Some interesting reports today:

  • Hawaiians urge Obama to step in on ceded lands –  an AP story reporting that “Hawaii legislators and legal groups are asking President Barack Obama to intervene in the Hawaiian lands case set to be heard by the U.S. Supreme Court next week.” (via KPUA.net). The Obama Administration has “intervened” in the case, but not in a way the groups probably had in mind: the acting Solicitor General sought and was granted 10 minutes oforal argument time to support the State of Hawaii’s argument, as noted here. “The groups believe leftover appointees of former President George W. Bush are arguing a position that’s inconsistent with Obama’s views.” That would be odd, if true,

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Continue Reading “Ceded Lands” Case, Land Use Round-Up

Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, “County lawyers say fair share legal.”The article reports:

Council members who say Judge Ronald Ibarra’s 2007 ruling in a contested condemnation case invalidated the county’s fair share assessments are basing their argument on too specific a portion of the ruling, attorneys for the Corporation Counsel’s Office said.

Following the logic of the argument, the attorneys went on, someone could argue that the county’s condemnation powers were also invalidated, because both condemnation and fair share assessment were mentioned in a single sentence. Instead, the county’s attorneys said, the references were specific to the Coupe lawsuit in which the ruling was filed, according to written opinions from the office released Friday.

Disclosure: we represent the property owners in the Coupe lawsuit mentioned (more accurately termed the “Coupe condemnation,” since the Coupe Family is the…

Continue Reading County Of Hawaii “Fair Share”/Impact Fees – What Did The Court Decide?

Although it was mostly a formality, the US Supreme Court today granted the acting US Solicitor General’s motion to present oral argument and for divided oral argument in the “ceded lands” case at next week’s arguments. The Obama Administration had asked to present oral argument as an amicus to support the State’s position, and to take 10 minutes of time.  What this means is that oral arguments next Wednesday will consist of 20 minutes by the State, 10 minutes by the Obama Administration, and 30 minutes by OHA.

After the SG’s office asked for argument time (as noted here), we assumed the Court would grant the request, since it is rarely denied. The SG is sometimes labeled the “tenth Justice,” since the Court pays close attention to its views when it participates in a case as amicus.  Here, the SG’s brief supporting the State was filed by the Bush…

Continue Reading Obama Administration Granted SCOTUS Face Time In “Ceded Lands” case

Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.

Continue Reading Materials From 2/20/2009 Land Use Seminar

SCOTUSblog posts “Argument Preview:  Hawaii v. Office of Hawaiian Affairs,” which is a summary of the case and the briefs of the parties:

This case has attracted considerable attention. Including the United States’s brief, seven amicus briefs were filed in support of the State, most notably a brief on behalf of thirty-two states arguing that the decision below violates principles of federalism. Ten amicus briefs were filed in support of OHA. Several of those briefs raised issues that were not addressed by the parties’ briefs. The Mountain States Legal Foundation filed a brief supporting the State in which it addressed the question whether Native Hawaiians deserve special deference from Congress similar to that given to American Indians; the Alaska Federation for Natives filed a brief in response. Another related argument, whether recognizing Native Hawaiian claims to land constitutes a race-based preference in violation of the Equal Protection Clause…

Continue Reading SCOTUSblog’s Preview Of The “Ceded Lands” Oral Arguments

As the Supreme Court oral argument in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), draws nigh, public interest in the case is peaking. We will be covering the arguments, which begin at 10am EST (5am HST) on Wednesday, February 25, 2009. The Obama Administration will also have 10 minutes of argument, supporting the State of Hawaii.

There is no live stream or direct coverage, but the transcript is usually released later in the day and we will post it here — along with some thoughts — as soon as it is released.

In the meantime, a couple of updates:

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Continue Reading “Ceded Lands” Case Round-Up