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Kauaisprings2 Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007.  The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition for a writ of administrative mandate or a petition for awrit of mandamus).

As reported in today’s Garden Island:

In a legal victory that was described by its attorney as a “total home run,” the Kaua‘i Springs bottled water company was granted three permits by 5th Circuit Judge Kathleen Watanabe yesterday in a strong rebuke of obstacles put up by the Kaua‘i County Planning Commission.

Kaua‘i Springs owner Jim Satterfield, who attended the proceeding with some 10 family members, said that he was almost “moved to tears” by the decision and categorized it as

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Continue Reading Victory in Kauai Springs Zoning Permit Appeal

Check out Jay Fidell’s op-ed in the Honolulu Advertiser, “Appeals court decision threatens our biotech sector” about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). 

In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae.  Jay writes:

The case involves a permit for importation of a geneticallyengineered algae, a choice target of environmental activists. But thecourt decision is not limited to genetically modified organisms: Itcovers all animal and plant organisms, GMO and otherwise. And itdoesn’t affect just permit applications — it also affects permitsalready granted for organisms already in the state. Agriculturalresearch and cultivation also will undoubtedly be affected. Hard casesmake bad law.

The retroactive nature of the decision reminds usof the Superferry. There, the applicant did everything the Departmentof Transportation asked for and got its approval. Then, years later,the court imposed additional requirements. How different is that fromwhat happened here? The applicant here did everything Agriculture askedfor and got its permit. Then, years later, the court imposed additionalrequirements. How can you rely on what government tells you? How canyou do a business plan? How can you get investors?

Our summary of the decision here. 
Continue Reading Op-Ed on GMO Algae Case

Kauaisprings2 Yesterday, we filed the Reply Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

For more information about the case, here are some links to earlier media coverage:

  • A May 2006 story about the case from the Honolulu Star-Bulletin
  • A storyfrom the Kauai newspaper about the TRO that halted the County’s attemptto shut the business down while the appeal was being considered.
  • Another story about the preliminary injunction that allowed Kauai Springs to stay open.

The Opening Brief is posted here.  The Kauai Planning Commission’s Answering Brief is posted here. Continue Reading PING: Private servants VisaURL: http://vitagate.itn.liu.se/GAV/booklets/wiki/index.php?title=Discovering-The-Ideal-Immigration-Immigration-Lawyer—Items-To-Bear-in-mindIP: 220.135.129.22BLOG NAME: Private servants VisaDATE: 02/03/2013 10:27:35 PMinversecondemnation.com: Kauai Springs Zoning Permit Appeal: Reply Brief

The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).  The court ruled on two issues related to the importation of genetically-modifiedalgae into Hawaii by the tenant of a State-owned facility on the BigIsland of Hawaii:

This appeal presents two issues: (1) whether the Board wasrequired to comply with the Hawaii Environmental Policy Act (HEPA),Hawaii Revised Statutes (HRS) chapter 343, before approving a permit toimport genetically engineered (GE) algae for production in a facilityon state lands; and if so, (2) whether two prior environmental impactstatements (EISs) prepared for the state lands where production of theGE algae is planned satisfied the Board’s HEPA obligations.

Slip op. at 1-2.  I attended the oral arguments and blogged about the issues in the case here.

The ICA held the Board should have required an EA. The court rejected the Board’s argument that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process for the importation of microorganisms worked an implied repeal of the EA requirement.  The court held that the plan to grow the organisms at the state facility is “an action that proposes the use of state land,” slip op. at 13, and therefore “HRS § 343-5 plainly and unambiguously required the preparation of an EA before the Board could approve [the] application.”  Id.  The court held that although chapters 343 and 150A may “overlap in their application and purpose, they do not conflict and both can be given effect.”  Id. at 16.

On the second issue, the ICA held the two earlier EISs did not satisfy the Board’s obligations:

The two EISs, which were prepared more than three and two decades ago, respectively, confirm that the NELH and HOST parks were still conceptual or in their infancy stages when the EISs were prepared.  It is clear from the EIS that as the nature and details of individual projects to be conducted at either park became known, further HEPA review was expected. 

Slip op. at 21.  The ICA did not address how this holding squares with section 343-5’s requirement that the EA be accomplished at “the earliest practical time.”  The Hawaii Supreme Court addressed this requirement in the “Koa Ridge” case.  Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006). 
Continue Reading HAWICA: EA Required For Importation of GMO Algae

Kauaisprings2Today we filed the Opening Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as a petition for a writ of administrative mandate or a petition for a writ of mandamus).  I won’t go into the details of the case in this post, since the brief spells out the facts and the arguments in support.   

For more information about the case, here are some links to earlier media coverage:

  • A May 2006 story about the case from the Honolulu Star-Bulletin
  • A story from the Kauai newspaper about the TRO that halted the County’s attempt to shut the business down while the appeal was being considered.
  • Another story about the

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Continue Reading Kauai Springs Zoning Permit Appeal

In Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007), the Appellate Division of the New York Supreme Court approved a taking of private property to preserve it as farmland.  The court’s majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and that there was no evidence of pretext in the record demonstrating that the presumption of public use should be questioned, even though the property owner asserted that the land would eventually be leased or sold to another private owner.  The facts of the case are set out in the opinion, and by Professor Patty Salkin in her analysis of the decision, so I won’t repeat them in detail here.  Two points, however, merit discussion.

First, the property owner asserted that because the taking was not part of a plan, it did not deserve judicial…

Continue Reading Comprehensive Eminent Domain Plan: If You Don’t Have One, The Court Will Make One Up

I sat in on today’s oral arguments in the Hawaii Intermediate Court of Appeals (the nondiscretionary appeals court of first resort) in an interesting case, Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855.  From the arguments and a quick review of the briefs, the primary issue in the case is whether the Board of Agriculture was required to undertake an Environmental Assessment pursuant to Haw. Rev. Stat. ch. 343 prior to granting a permit for the importation of genetically-modified algae into Hawaii by the tenant of a State-owned facility on the Big Island of Hawaii.

The recording of the arguments can be downloaded here (63mb mp3).

Several “community groups” filed suit against the Board, claiming that an EA was required because the imported GMO algae would be used in the state-owned facility, and therefore “[p]ropose[d] the use of state or county lands,” a triggering…

Continue Reading ICA Oral Arguments in GMO Algae / EA Appeal

When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit?  Are there any systematic checks in place to keep the courts from being co-opted for political ends?  These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).  This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion. 

An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.Continue Reading ▪ Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out

What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption? 

That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).

This post looks at the substantive issue in the case — whether DOT erred when it determined that improvements to Maui’s Kahului Harbor were within the categorical administrative exemptions to the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, and therefore no Environmental Assessment was necessary. The Hawaii Supreme Court held DOT was wrong, and the improvements were not exempt.  The issue of “standing” took up a majority of the court’s opinion, and I deal with that issue in this post.

I won’t go into a blow-by-blow outline of the court’s reasoning, which…

Continue Reading ▪ Superferry EIS Case Summary pt. I: Do Statutory Exemptions Mean Anything?

To my colleagues at the LINC conference in D.C., thank you for the opportunity to present the topic.  Here are links to the cases discussed:

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Continue Reading ▪ Links for “Progress in Protecting Property Rights Post-Kelo“