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Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.  

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now…

Continue Reading HAWSCT Briefs In Bridge Aina Lea: Takings, State Land Reclassification, And Orders To Show Cause

For those of you who follow the issue, here’s the latest in the “genetically modified organisms” issue, yet another one where Hawaii is apparently the epicenter. As we posted earlier, the County of Kauai adopted an ordinance regulating GMO’s which was immediately challenged in Federal District Court in Honolulu, while the County of Hawaii (Big Island) also adopted an ordinance that was challenged in state court by a farmer. 

The Big Island ordinance is now being challenged in Federal Court on a number of grounds (preemption, Commerce Clause, and takings). Read the complaint for yourself, below. 

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Links From Today’s Session On GMO Issues
Western Australia Supreme Court: GMO “Contamination?” No Worries, Mate
The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court
GMO Chapter 2 – Big Island Farmer:

Continue Reading Latest Federal Court Salvo In The GMO Front

Earlier this year, we co-chaired the Hawaii Agriculture Conference, and one of the hottest items on the agenda was the “GMO” issue, now brewing in at least two Hawaii courts (the Kauai ordinance was challenged in federal court, while the Big Island ordinance was challenged in the Third Circuit). 

We’re not alone, and the Supreme Court of Western Australia recently issued a decision holding that a farmer who used GMO canola seeds was not liable when some of hs stuff blew over into his neighbor’s organic farm. The organic farmer claimed that the contamination resulted in him losing his organic certification on a large percentage of his land, and brought a nuisance claim. The court rejected the argument, holding it was lawful to grow GM crops, and the farmer’s practice “was entirely orthodox,” even if it resulted in contamination: 

Mr Baxter [the GMO farmer] had…

Continue Reading Western Australia Supreme Court: GMO “Contamination?” No Worries, Mate

We’ve been tied up with some filings, and have not been able to get to our promised review of the Ninth Circuit’s recent decision in Horne v. United States. We will do so once we put one more  brief to bed, but until then, our colleagues in the Regulatory Takings Bar have published some thoughts:

  • The Horne Case Down the Tubes Again – Professor Gideon Kanner weighs in: “We are reminded of the insight of Fred Bosselman who once observed that property owners in inverse condemnation cases are denied due process of law, not by getting too little of it, but rather too much.”
  • The Grapes of Wrath Part II – A Return to Horne – Ben Rubin at the California Eminent Domain Report writes: “The Ninth Circuit found that as the Marketing Order operated against personal, rather than real, property, and because the Hornes conceded that they did

…
Continue Reading Raisin Hell – Links To Reports On Horne

Here’s an interesting case upcoming on the Hawaii Supreme Court’s oral argument calendar that is worth following. (April 29, 2014, at 10:00 a.m. – the court is taking the show on the road, and the arguments will be at the gym at Kealakehe High School, in Kailua-Kona, on the Big Island.)

In Molfino v. Yuen, No. SCWC-10-150 (cert. app. filed Dec. 9, 2013), the petitioner asks whether a county government has any obligation to maintain accurate and complete records. Your first reaction may be “well, duh.” But like many other things in the legal business, it isn’t necessarily as simple as all that. Indeed, the Intermediate Court of Appeals concluded in a Summary Disposition Order (Aug. 28, 2014) that government does not have an obligation to keep its own records accurately. The ICA relied on a 1986 Hawaii Supreme Court case which held:

Without a reasonable and proper limitation of…

Continue Reading HAWSCT Considering Whether A County Has A Duty To Maintain Accurate Public Records

This is a longer post, but we think it’s worthy of your time. That’s because even though there’s a lot going on in the opinion by the California Court of Appeal in Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), it cuts through much of the unnecessary doctrinal fog surrounding takings law, especially the U.S. Supreme Court’s bizarre ripeness requirement first enunciated in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

The Bottom Line

Although the entire thing is worth reading (44 pages of majority opinion, followed by 46 pages of dissent), if we had to pick out one passage as the takeaway, here it is: 

Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result…

Continue Reading Cal App States The Inconvenient Truth: There’s No Substitute For Eminent Domain – Gov’t Must Condemn First If It Wants To Enter Land

Here’s the Opening Brief on the Merits, filed last month in a very interesting and important case now pending in the California Supreme Court, City of Perris v. Stamper. 

Update: Answering Brief posted here. 

We reported on the Court of Appeal decision here. The court held that that in a condemnation action, the jury gets to determine the reasonable probability that the City would successfully assert that its dedication of property requirement would mean that the property taken could be acquired essentially for free. The court concluded that even though Nollan/Dolan issues are involved, the jury determines this issue because “issues surrounding the dedication requirement are essential to the determination of ‘just compensation’ and therefore must be “ascertained by a jury.'” 

The city condemned a portion of Stamper’s industrially-zoned vacant land in order to realign and widen an adjacent road. Its deposit was based on the use of…

Continue Reading Cal S. Ct. Brief: In Determining Compensation, Judge, Not Jury, Determines Reasonable Probability Of Nollan/Dolan Exaction

Looks like they’re at it again, a solution in search of a problem: a bill has been proposed in the Hawaii Legislature to create an “Environmental Court,” whose mission would be to handle “environmental disputes” arising under a wide range of state statutes:

…administrative proceedings and proceedings for declaratory judgment on the validity of agency rules authorized under chapter 91, arising under chapters 6D, 6E, 6K, 54, 58, 128D, 128E, 201N, 205, 205A, 220, 269, 339, 339D, 340A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, 342P, 343, 508C, and 664, and Titles 11 and 12.

(And the regulations promulgated by state agencies, and ordinances and regulations promulgated by the counties, no doubt.) The bill (SB 632) would task this new court with “maintenance and improvement” of the environment and with exercising “constant vigilence” to “promote and protect Hawaii’s natural environment through consistent…

Continue Reading Does Hawaii Need An “Environmental Court?” (Part II)

At the Hawaii Agriculture Law Conference which we just wrapped last week, perhaps the hottest topic on the agenda was the anti-GMO ordinances recently adopted by the Counties of Hawaii (Big Island) and Kauai.

Barista’s note: One advantage of having POTUS in town for a couple of weeks was that it resulted in a cohort of national reporters sitting around with nothing to write about, no doubt being pestered by their editors suffering back in the polar vortex to get off the beach and actually file a story or two. Thus, we saw a series of big league newspapers filing stories about Hawaii, including this marqee piece in the New York Times about the anti-GMO measures, “A Lonely Quest for Facts on Genetically Modified Crops.”

At the Ag Conference, we discussed the possibility of a lawsuit being filed against Kauai, since it seems to be the locus…

Continue Reading The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court

14.AGRHI

Here are links to some of the materials mentioned at our session today on the GMO issue at the Hawaii Agriculture Law Conference:

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My co-planning Chair, Dave Bateman (a lawyer and a coffee farmer), Continue Reading Links From Today’s Session On GMO Issues