2009

The Legal Information Institute at Cornell Law School — which previews U.S. Supreme Court cases — has published its summary of the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008). The preview offers a neutral view of the issues and analyzes the arguments of the parties.  Here’s the short version:

In 1993, Congress and the President adopted a resolution(“Apology Resolution”), in which the UnitedStates apologized for its role in the overthrow of the Kingdom of Hawaii in 1893. Shortly thereafter, theOffice of Hawaiian Affairs (“OHA”) sought to enjoin a residential development onthe Leiali’i land parcel, land owned by the state, but held in trust for NativeHawaiians and the general public. OHA also requested that the state agency incharge of the parcel’s development certify that any transfer of the parcel’s ownershipwould not diminish Native Hawaiians’ claims to the land. The state agencyrefused and…

Continue Reading Legal Information Institute’s Summary Of “Ceded Lands” Case

The State has filed the final brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), available here. The State argues that the Office of Hawaiian Affairs’ (and a majority of its amici’s) argument urging the Court to dismiss certiorari are “as baseless now as when respondents unsuccessfully raised it in opposition to certiorari.” Brief at 1.

Respondents argue at length that the State’s trust obligations towards the ceded lands (which run to all the people of Hawaii, not just Native Hawaiians) arise from state law, even though respondents elsewhere concede that the “ceded-lands trust was established by federal law — and is therefore … a “federal trust.'” Resp. Br. at 47. But no matter how the trust is characterized, the essential point is that respondents argued below — and the Hawaii Supreme Court held — that the legal determinations…

Continue Reading State Of Hawaii’s Reply Brief In SCOTUS “Ceded Lands” Case

There’s still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009. 

I’m presenting a session on “U.S. Supreme Court, Regulatory Takings and Eminent Domain Update.”  My Damon Key colleagues are covering “Affordable Housing Exactions” and “Vacation Rentals” (Mark Murakami), “Rockfall and Landowner Liability” (Noelle Catalan), “Environmental Law Update” (Robert Harris, a Damon Key alumni, and current Director of the Hawaii Chapter of the Sierra Club), and  “Hot Topics and Recent Hawaii Cases” (Greg Kugle). 

More information, including the complete agenda and registration information here.Continue Reading Upcoming Seminar: Zoning, Subdivision And Land Development Law

A collection of interesting reports on land use and zoning topics:

  • Mission residents reject American Apparel (San Francisco Chronicle) – “Congratulations to the residents of Valencia Street. After a rowdy and sometimes misleading campaign, they managed to stop American Apparel – a socially conscious, popular, American-run clothing store – from moving into one of the street’s vacant storefronts….It’s another through-the-looking-glass moment in San Francisco. They love the product but hate the store solely because there are about 260 of them worldwide. That means it’s a chain and unwelcome under any circumstances.”

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Continue Reading Zoning And Land Use Round-Up

Eminent-domain-cover-copy In “Positioning Politics: Kelo, Eminent Domain, and the Press,” an article in “Land and Power: The Impact of Eminent Domain in Urban Communities,” published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), “was more interpretation than fact andrelied heavily on inflammatory hyperbole and provocation.” Further,

Overwhelmingly and unsurprisingly, the editorials voiced dissent withthe Court’s ruling, which mirrored public opinion data, but as with thereporting, they relied heavily upon a series of myths about Kelo andeminent domain. These myths became powerful framing devices, which havemade eminent domain a touchstone social-policy battle with a life ofits own.

The abstract of the article is on SSRN here (the full article is also available for download at SSRN), and the entire “Positioning Politics” monograph…

Continue Reading Kelo Backlash: Media Hype?

Forbes.com posts “Supreme Court Cheat Sheet,” summarizing “five business cases” pending in the Supreme Court worth following. Included among those cases are Hawaii’s own “ceded lands” case. (Scroll 2/3 down the page. Also included is “In Pictures: Five Cases to Watch,” a slideshow.)

The article summarizes the case as follows:

Hawaii v. Office of Hawaiian Affairs

That may be the situation with another history-laden case that pitsHawaii against groups representing native Hawaiians over the status of1.2 million acres of land, 20% of the island state. In a 2008 ruling,the Hawaii Supreme Court blocked the sale of some of that land to aprivate developer, saying the state couldn’t transfer any propertyuntil the Hawaii legislature resolved the question of whether nativeHawaiians actually owned it.

Thefight stems from the 1898 annexation of Hawaii, which Congressauthorized and President McKinley signed after an earlier coupdethroned Queen Lili’Uokalani. Hawaii became a…

Continue Reading Forbes On The SCOTUS “Ceded Lands” Case

Duck Thanks to Kona Blogger Aaron Stene for sending this next item my way, a follow up to the previous two days’ reports from West Hawaii Today (posted here and here) about Hawaii County’s so-called “fair share” exaction system. In “Council reaffirms belief in fair share legality,” WHT reports:

The county’s Corporation Counsel spent two-and-a-half hours of a four-hour-long executive session Wednesday apparently trying to convince the County Council the County’s fair share cost system is legal.

The effort apparently worked.

Council Chairman J Yoshimoto, Hilo, said after the meeting the “Corporation Counsel explained to us the fair share system is legal.”

He said he does not expect the council to hold another executive session on the subject any time soon, as information presented by Corporation Counsel during the meeting clearly showed the fair share cost system is legal.

The county has for years used the system, which…

Continue Reading Even More On Hawaii County’s Impact Fee … Whoops, I Mean “Fair Share”

Following up on yesterday’s post about the West Hawaii Today series on the legality of Hawaii County’s “fair share” impact fee system, the paper posts three stories about the issue:

  • How much, for what and when? (“The county may have illegally collected $7.4 million in fair share assessments from housing developers since the early 1990s. Fairshare assessments have been under fire since 2007, when 3rd CircuitCourt Judge Ronald Ibarra — as part of his ruling on a condemnation lawsuit — ruled the county’s system is illegal because it doesn’t meetstate regulations. Accordingto the Hawaii Revised Statutes, “impact fees may be assessed, imposed,levied and collected by (any county) provided that the county enactsappropriate impact fee ordinances.”)
  • Council members divided on fair share (noting that several council members question the legality of the “fair share” system, while others adhere to the not-disclosed-in-the-story advice of the Corporation Counsel’s office that the “fair

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Continue Reading More On Hawaii County’s “Fair Share” Impact Fees

Following up on the earlier post New SG Unlikely To Alter Fed Gov’t’s SCOTUS Arguments In Ceded Lands Case, which noted that the new Solicitor General has sought leave from the Supreme Court to participate in oral argument and for divided argument, here’s the motion filed by the SG’s office on January 29, 2009, which reveals that the Obama Administration does not appear to be materially altering arguments the federal government set forth in the amicus brief supporting the State’s position filed by the Bush Administration.

This case concerns whether federal law required or permitted the Supreme Court of Hawaii to enjoin the State of Hawaii from transferring lands that the United States obtained in fee simple absolute upon the annexation of Hawaii in 1898 and granted tot he State, to hold in trust, upon its admission to the Union. Those issues implicate significant federal interests.

First, the…

Continue Reading USSG’s Motion To Participate In Oral Argument In “Ceded Lands” Case