Agriculture

Subscribe to Agriculture via RSS

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.
  • The Hawaii State Planning Act,

…
Continue Reading Materials And Links From Today’s Water Law Seminar

Okay, we’ve decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they’re out of our system in the beginning. After that, no more yolks. We promise.

In Rose Acre Farms, Inc. v. United States,No. 2007-5169 (Mar. 12, 2009), the U.S. Court of Appeals for theFederal Circuit held that a regulation restricting the sale of eggs was not ataking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation “was not severe” and the character of the government action “strongly favored” the government.

Rose Acre Farms owns egg-laying chickens.  A lot of them: “eight layer-hen farms with millions of hens.” The USDA first promulgated temporary, then final regulations that restricted the interstate sale and transportation of eggs determined to be contaminated with salmonella. After illness outbreaks were traced to three…

Continue Reading Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation

Check out the interview with Nalo Farms owner (and Hawaii Farm Bureau Federation president) Dean Okimoto in this month’s Hawaii Business. 

here text

The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

Disclosure: I represent the Hawaii Farm Bureau Federation.Continue Reading Hawaii Farmers And Ranchers: We Don’t Get No Respect

In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held: 

Petitioner contends that the United States Supreme Court’s decision in Kelo v City of New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V [“nor shall private property be taken for public use, without just compensation”]). We need not, and do not, reach the issue whether petitioner’s interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was…

Continue Reading New York Court Of Appeals: No Need For A Comprehensive Taking Plan

We aren’t officially an “environmental law” blog, and when we do cover the issue, it is mostly on the periphery.  However, in 2008, we hit a couple of significant issues that had some relevance to land use law. 

First, in the U.S. Supreme Court’s first decision of the Term, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy’s interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs.  Why did a land use law blog care about a case involving the Navy’s useof sonar in training exercises off the California coast?  First, as weexplained here,the case is philosophically interesting because of the argumentsregarding when courts should defer to the judgment…

Continue Reading 2008 Land Use In Review: Environmental Law

In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family’s history to the post-contact “plantation days,” and today, even environmental groups proclaim they support farmers and ranchers and want to “keep the country country.”  Who among us of a certain age didn’t work in the cannery or the fields during summer break, or doesn’t miss Arakawa’s? The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

But often the theory of agriculture runs headlong into the reality. For example, agricultural uses may be prohibited on ag land, an interisland ferry by which farmers can transport their goods to market is shut down by the courts due to environmental worries, and most…

Continue Reading Hawaii Agriculture at Risk: Water Law and Land Use

An opinion today from the California Fifth District Court of Appeals: Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist., No. F03956 (Nov. 11, 2008). The case involves whether a local air pollution control agency must “actively” assess the impacts of agriculture “volatile organic compounds” (aka cow waste) before adopting air pollution control rules.  The court held that it must.

But what really grabbed me was the plaintiff: “Association of Irritated Residents.”  (Oh, I get it: “AIR”).  Reminds me of those catchy names plaintiff’s groups often use (see, e.g., United States v. SCRAP (Students Challenging Regulatory Agency Procedures), 412 U.S. 669 (1972)), and the cheeky acronyms that float around the land use arena to describe motivation (e.g., NIMBY), which we discussed in this post.

But I think “Association of Irritated Residents” is the best. Pretty much one-size-fits-all.Continue Reading Best Plaintiff Group Name: Association of Irritated Residents

In a lengthy opinion, the Hawaii Intermediate Court of Appeals in Pono v. Molokai Ranch, Ltd., No. 28359 (Oct. 21, 2008), held that the State Land Use Law, Haw. Rev. Stat. ch. 205, does not create a private right of action allowing for non-governmental enforcement of the law.  The court also held there is no private right of action to enforce the Molokai Community Plan. 

Judge Foley concurred, and would have held that the plaintiff did not exhaust its administrative remedies because it did not appeal the Public Works Director’s decision to the Board of Variances and Appeals.

Disclosure: my Damon Key colleagues Greg Kugle and Ken Kupchak represented Molokai Ranch.

More to follow after a chance to digest the opinion.  Continue Reading HAWICA: No Private Right of Action to Enforce Land Use Laws

Here are the materials from today’s discussion:

Continue Reading Hawaii Farm Bureau Federation: Materials From Friday’s Discussion

Farmers and ranchers should be aware of a new law passed by theLegislature last session that adds another layer of protection forHawaii agriculture.

A new section was added to the Land Use Law (chapter 205) requiringthat before the State Land Use Commission approves a petition for a“boundary amendment” (a change in the state’s land use designation fora parcel), for lands “contiguous or adjacent to” land designatedagricultural, it must include two conditions.

First, the conditions must prohibit any action that would interferewith or “restrain” farming operations, as long as those farmingoperations are consistent with generally accepted agricultural andmanagement practices. This requirement mirrors the language in Hawaii’sRight to Farm Act, which prohibits nuisance lawsuits against farmersand ranchers who employ generally accepted practices. In other words,farmers and ranchers determine what are the best agricultural andmanagement practices.

“Farming operation” is also defined by reference to the Right to FarmAct, which defines the term broadly…

Continue Reading Hawaii’s “Buffer Bill”