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Hawaii News Now – KGMB and KHNL

Hawaii News Now came calling yesterday, looking for commentary about the latest in the case challenging the proposed Thirty Meter Telescope on the Big Island’s Mauna Kea. We obliged.  

As you know, we’ve been following the case. It’s already been up to the Hawaii Supreme Court, which unanimously invalidated the Conservation District Use Permit which the State Board of Land and Natural Resources had previously issued. The court correctly held that the BLNR should not have issued the permit (even if the permit didn’t allow construction to begin) before it conducted the contested case to consider the objections of the challengers. This process, the court emphasized, “lacked both the reality and appearance of justice.” In other words, it looked really bad to grant a permit and only then consider objections. 

The court remanded the case to the Board for a reboot. 

Once…

Continue Reading The Latest On The Thirty Meter Telescope Case: Everyone Wants The Hearing Officer Removed

This just in. The Court, in an opinion authored by Chief Justice Roberts:

The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.” 33 U. S. C. §§1311(a), 1362(7), (12). Because it can be difficult to determine whether a particular parcel of property contains such waters, the U. S. Army Corps of Engineers will issue to property owners an “approved jurisdictional determination” stating the agency’s definitive view on that matter. See 33 CFR §331.2 and pt. 331, App. C (2015). The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U. S. C. §704.

United States Army Corps of Engneers v. Hawkes, No. 15-290 (May 31, 2016). 

Short answer: yes. 

The opinion is as bland as you might expect, focusing as it does on the Administrative Procedures Act. CJ had to get everyone aboard, …

Continue Reading Unanimous SCOTUS: You Can Judicially Challenge A Clean Water Act Jurisdictional Determination

Here’s the amicus brief we filed yesterday on behalf of lawprof David Callies and our colleagues at Owners’ Counsel of America in an important case involving ownership and use of the “dry sand” beach, now pending in the North Carolina Supreme Court.  

In Nies v. Town of Emerald Isle, No. COA15-169 (N.C. App. Nov. 17, 2015), the court of appeals held that the dry sand portion of the beach — the part between the mean high water mark and the dune or vegetation line — is subject to the public trust. Consequently, the Town was not liable for a regulatory taking when it allowed the public, for a fee, to drive on the beach. The Nies family, which thought it owned the property inland of the MHWM under long-standing North Carolina law, and that the public trust only applied to property seaward of the MHWM, sought compensation.  The North Carolina…

Continue Reading Amici Brief: If A Legislature Or Court Moves The Public Trust Shoreline Inland, It’s A Taking

The Honolulu Star-Advertiser today ran a story by Timothy Hurley about a new bill adopted by the Hawaii legislature which puts certain cases on the appellate fast-track, “New law could speed process for Thirty Meter Telescope.”

The bill mandates that in certain cases, any administrative appeals skip the usual first two steps (circuit court, Intermediate Court of Appeals), and go straight from the agency to the Hawaii Supreme Court. 

We were interviewed for the story, and although the impact on the rebooted contested case about the Thirty Meter Telescope is pretty obvious, we’re of the opinion that this measure wasn’t designed to address only that case: 

Robert H. Thomas, a veteran Honolulu land use and appellate lawyer, said he sees the new law shaving off a year or more of legal sparring on the way to the state’s highest court.

“Our state gets rapped frequently for our levels of…

Continue Reading New Appellate Law May Shortcut “Death By A Thousand Days”

A good story for your weekend reading from the Los Angeles Times, “U2’s The Edge and his decade-long fight to build on a pristine Malibu hillside,” about the rock guitarist’s decade-long effort to build his dream home compound in the exclusive coastal town. Running smack dab in to the California Coastal Commission, this was a clash between a guy who is touted as being “an activist, an artist, that made his money from spreading peace and love in the world,” and people whom you might expect would support a guy like The Edge. 

Yeah, but it’s still filthy lucre, and even Mr. Edge’s donation of a public-access hiking easement and $1 million to maintain it were not enough. 8-4, project denied. 

Not until the Coastal Commission’s Director-For-Life died, and The Edge replaced his project manager with “an artist and sometime model, who had interrupted his architecture career…

Continue Reading California Coastal Development In A Nutshell: Hire Jesus – Moses, Actually – To Sell Your Luxe Home Plans, And Become One With The Mountain.

Another day that we’re tied up, so there won’t be too much analysis. But we wanted to post this fascinating case out of the California Court of Appeal, Friends of Martin Beach v. Martin Beach 1 LLC, No. A142035 (Apr. 27, 2016).

As the caption of the case indicates, it involves beach access. Specifically, access to a Northern California beach that, despite some junky Yelp reviews, is apparently popular enough to spawn a “friends of” activist defense group. The Friends want access across private property owned by a really rich Silicon Valley guy. Before he owned it, they alleged, the owners let the public cross to get to the beach. The Silicon Valley guy, however, didn’t continue that practice, and the lawsuit followed.

The owner claimed he had exceptionally good title, because the land, like much land in California, could trace title back to a Spanish or Mexican…

Continue Reading Cal App On Tidelands And Mexican Title: Owner Has Title In Land Used For Beach Access, But May Have Lost It By Dedication

Here’s what we are reading today: 

  • Here’s the equivalent of law blogger nirvana: a link to one of your pieces by SCOTUSblog: “There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts. In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”
  • In Oklevyeha Native American Church of Hawaii, Inc. v. Lynch, No. 14-15143 (9th Cir. Apr. 6, 2016), a panel of the Ninth Circuit concluded that a Hawaii church which uses marijuana as part of its doctrine did not have a claim under RFRA to prevent it from being prosecuted under the Controlled Substances Act. The court held that the

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Continue Reading Friday Reading: SCOTUSblog’s Shout-Out; 9th Circuit Says Church Bogarted Evidence In Cannabis Claim; Are Agencies To Blame For Telescope Delay?; WWII Guam Land Seizures Case Moves Forward

In a ruling that no one who was paying attention could claim to be surprised by, the Hawaii Supreme Court yesterday issued a 4-1 memorandum opinion holding that the “agricultural lands” section of the Hawaii Constitution isn’t self-executing, and which approved the State Land Use Commission’s reclassification of land on Oahu from agricultural to urban uses for the “Koa Ridge” master-planned community:  

its constitutional history as well as the legislative history of Act 183 do not reveal an intent to require the LUC to delay reclassifying agricultural land pending formal designation of [Important Agricultural Lands].

Slip op. at 3. Justice Pollack, as he did in a prior case on the same issue, dissented.

No Surprises

We say no surprise, because only a few months ago, the same majority (Chief Justice Recktenwald, and Justices Nakayama and McKenna, joined by a circuit judge sitting for the recused — and now…

Continue Reading HAWSCT Says It Again: Court Won’t Create A Moratorium While “Important Ag Lands” Process Completes

The only issue in Caffe Ribs, Inc. v. Texas, No. 14-0193 (Apr. 1, 2016) was whether the jury could hear evidence proffered by the property owner that the delay in cleaning up the land to make it marketable could have been attributable to the government. The trial court said no, and the court of appeals affirmed.

The Texas Supreme Court disagreed: “We hold that the trial court’s exclusion was an abuse of discretion, and further hold that the exclusion was harmful because it allowed the government to use an eight-year holding period to reduce the property’s value without allowing the jury to consider the role the government played in creating that holding period.” slip op. at 2.

The court’s opinion is a quick read and we recommend you digest the entire thing. But here’s the short version. Caffe purchased the property, which was already contaminated, and began its voluntary remediation efforts…

Continue Reading Government’s Role In Delay In Cleanup Of Contaminated Property Admissible In Eminent Domain Case

We usually don’t cover decisions under California’s Environmental Quality Act. You could spend your entire legal career doing these kind of cases, and there are other forums which ably follow CEQA. 

But we had to make a mention of the California Court of Appeal’s recent opinion in Preserve Poway v. City of Poway, No. D066635 (Mar. 9, 2016), which concluded that a property owner’s transformation of his land from a horse boarding facility to 12 residences did not implicate CEQA, because it shows just how far these “environmental” arguments can go.  

The owner of the “Stock Farm,” a horse boarding facility, wanted to close it. In its place? Twelve homes on one-acre lots. This is Poway, (“The City in the Country“), so the homes would have “enough room for horses.” Apparently, there is no shortage of horse boarding facilities in the area. All…

Continue Reading Reverse NIMBY? Allowing Horse Boarding Facility To Close Isn’t An “Environmental” Issue