2009

Liveblog On Tuesday, October 13, starting at 10:00 am (Hawaii Standard Time), the Hawaii Supreme Court will hear oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here). We will be covering the arguments live here. 

Details of the argument schedule are posted on the Judiciary site here (the site notes the arguments will be held on “Thursday” October 13, but we’ve confirmed with the Clerk that’s a typo, and the date is Tuesday, October 13).

The last time we live blogged Hawaii Supreme Court oral arguments was in the second “Superferry” appeal. We used the Cover it Live application which seemed to work well and does not require the viewer to install any extra software beyond a web browser, so we’re using it again.

Go to this page to check if the viewer window works…

Continue Reading Upcoming Live Blog Of HAWSCT Arguments In Ala Loop Homeowners Appeal: Are State Zoning Laws “Environmental” Statutes?

Our coverage of the Hawaii Supreme Court oral arguments will go live on Tuesday, October 13, 2009, at approximately 9:45 a.m., Hawaii time. 

<p>&lt;p&gt;&amp;lt;a href=”http://www.coveritlive.com/mobile.php?option=com_mobile&amp;amp;task=viewaltcast&amp;amp;altcast_code=7c50a56fae” &amp;gt;HAWSCT Ala Loop arguments 10-13-2009&amp;lt;/a&amp;gt;&lt;/p&gt;</p>


Continue Reading 10-13-2009 Live Blog Of HAWSCT Arguments In Ala Loop Homeowners Appeal: Are State Zoning Laws “Environmental” Statutes?

The property owner has filed a brief responding to the amici brief supporting the application for writ of certiorari which urges the Hawaii Supreme Court to review the Intermediate Court of Appeals’ decision in Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008). In that case, the ICA held that unless a project changes, a supplemental EIS under Haw. Rev. Stat. ch. 343 is notrequired, even if the circumstances do.

The application and the amici brief urge the Hawaii Supreme Court toadopt a rule requiring a supplemental EIS even when a project does notchange if the “setting,” “circumstances,” or “context” can be allegedto have changed by a single plaintiff who meets the minimal requirements for environmental standing.The amici brief emphasizes the purpose of chapter 343, arguing the ICAmajority opinion was a “cramped” reading of the law and…

Continue Reading Response To Amicus Briefs In Kuilima/Turtle Bay HAWSCT Cert Application

With apologies to Jeff Foxworthy, you might be a regulatory takings maven if…you instantly understood this post’s headline, and eagerly clicked through to read the story.

But you don’t have to be a takings nerd to appreciate the import of today’s Ninth Circuit decision in Los Altos El Granada Investors, v. City of Capitola, No, 07-16888 (Oct. 7, 2009). The court held that federal constitutional claims do not have to be litigated in state court:

Despite clear language from the Supreme Courtestablishing that “a state court determination may not be substituted,against a party’s wishes, for his right to litigate his federal claimsfully in the federal courts,” England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 417 (1964), two California courts determined that this right to a federal forum was “irrelevant” andstruck appellant’s clear reservation of its federal claims from itscomplaint. The district court then determined that…

Continue Reading Ninth Circuit Weighs In On England Reservations In Williamson County Ripeness

In “Supreme Court’s Regulatory Takings Case Draws Widespread Interest,” the New York Times reports about yesterday’s filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The Supreme Court would likely resist such overt involvement intakings disputes, according to Jay Austin, senior attorney with theEnvironmental Law Institute.

“The only thing that petitionershave to cite to even suggest any precedent is a concurring opinion byformer Justice Potter Stewart in another beach case 40 years ago,”Austin said.

“Well, he’s the justice who famously said aboutobscenity that ‘I’ll know it when I see it.'” This case would put thejustices in the same position, he said, adding: “Just like they had toscreen films in the basement of the Supreme Court to see whether theywere obscene, they’d have to wade into all of…

Continue Reading NY Times On Gov’t Amici In Florida Beach Judicial Takings Case

Several amicus briefs have been filed supporting the government’s position in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The government’s merits briefs are posted here.

We filed an amicus brief supporting the property owners, which is available here. The property owners’ merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here. All briefs and more about the case on…

Continue Reading Amicus Briefs Supporting The Gov’t In Florida BeachTakings Case (aka Judicial Takings Case)

WavesOn Tuesday, November 10, 2009, at 9:00 a.m., the Hawaii Intermediate Court of Appeals will hear oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175. The arguments will take place in the Supreme Court courtroom at Aliiolani Hale.

The ICA panel will consist of Judges Nakamura, Watanabe and Foley.

The issue in thatcase is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State gets it every time.  

The trial court held that Act 73…

Continue Reading Upcoming Hawaii Appellate Court Oral Arguments In Beach Takings Case


In today’s Honolulu Star-Bulletin, University of Hawaii lawprof David L. Callies responds to my September 20, 2009 review of Jeff Benedict’s book about the U.S. Supreme Court’s infamous Kelo eminent domain case, Little Pink House: a True Story of Defiance and Courage.

In In defense of taking land for public use, Callies writes:

First, as Thomas suggests, the U.S. Supreme Courtrelied on its earlier Hawaii Land Reform Act decision in deciding Kelo.But the Act does not permit the use of eminent domain by landowners. Astate agency – the Hawaii Housing Authority – condemned the land undersingle-family homes. No court has ever authorized the use ofcondemnation by private citizens.

Second,the Connecticut government redevelopment agency in the Kelo casecondemned the Kelo property in order to economically revitalize anentire neighborhood – not “to entice a major pharmaceutical company torelocate to New London.” The relocation was already a fact of…

Continue Reading Professor Callies’ Response To Little Pink House Book Review: New London’s Kelo Taking Was Not To Entice Pfizer

As I mentioned here, in August, I became the Chair of the Committee on Condemnation Law, a part of the ABA’s State and Local Government Law Section. The Committee includes some very experienced practitioners and scholars, private and government attorneys, and newer lawyers and law students looking to gain experience and a collegial network. The topics we follow are not limited strictly to “condemnation” or “eminent domain,” and include regulatory takings and inverse condemnation, and pretty much anything that can be of interest to condemnation attorneys.

We’re looking for ways to communicate better with committee members and disseminate information about upcoming CLE teleconferences (some low cost, and some free of charge), new decisions and developments in our area of law, publications, and so forth.

One of the ways is to revive the committee listserv (e-mail distribution list), which has lapsed into semi-dormancy in the last few…

Continue Reading Condemnation Law Committee – Come Join The Conversation

Here are the respondents’ merits briefs in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief supporting the…

Continue Reading Government Merits Briefs In Florida Beach Takings Case aka The Judicial Takings Case