Environmental law

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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

A few months ago, we commented on the proposed “environmental court,” a bill working its way through the Hawaii legislature. We called it a bad idea, and hoped the Lawgivers would see the light and let this idea fade away.

It looks like we were unjustifiably optimistic, and both houses have now passed the bill (view its current form here (SD632)). See also “Bill would create environmental court” from West Hawaii Today, which correctly notes that the only thing standing between the bill and the rest of us is Governor Abercrombie’s veto pen.  

Rather than redo our earlier comments, we simply repost them below since our thoughts remain unchanged. All we have to add at this point is the above video, a longer piece, but worth your time if interested. Its title is “Price of Paradise,” and it explores why Hawaii housing prices —…

Continue Reading Hawaii’s “Environmental Court” – A Bad Idea Whose Time (Apparently) Is Nigh

Yesterday, we posted one of those only-in-Hawaii kind of cases. Today, by coincidence, is one of those only-in-the-south type of cases: 

The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi.

In Christmas v. Exxon Mobil Corp., No. 2011-CT-01311-SCT (May 15, 2014), the Mississippi Supreme Court held that a wild alligator infestation on a neighboring property is not a private nuisance as a matter of law. Why? Because alligators — particularly wild alligators — even though they can be such a pain, are something that every property owner wants next door? Nope, because wild alligators are a protected species, and the owner of the property which they infest (in this case Exxon), can’t do much of anything to abate said infestation without running afoul of the State of Mississippi’s statute which says you cannot “buy, sell, take, or posess alligator eggs,” you can’t disturb …

Continue Reading Mississippi: Ferae Naturae Alligators Next Door Cannot Be A Private Nuisance

Those of us who have been in the courtroom when the U.S. Supreme Court has conducted its sessions over the past decades will certainly recall the fairly tall guy in the fancy suit guiding the lawyers, press, and audience members where to sit, what to do, and the like. That was the Clerk of the Court, William Suter, who recently retired from the job after a number of years doing it.

He’s now a visiting fellow at the Hoover Institution, and has authored this short piece, “Executive Power on Steroids.” where he posits that “[i]n four recent Supreme Court cases, the Obama administration takes a crabbed view of individual rights.” Two of the four cases Gen. Suter writes about (see, he’s also a retired U.S. Army Major General) are decisions with which we are familiar, Sackett and Arkansas Game and Fish:

What do these cases have in common?

Continue Reading Former Clerk Of The Supreme Court: Govt “Bullying” And “Strong-Arming” Property Owners

Here’s an article worth reading, co-authored by our colleague Edward Thomas (no relation, although we often kid that Ed is our brother-in-the-law), President of the Natural Hazard Mitigation Association, and a fellow who is concerned both with anticipating natural hazards such as sea level rise, hurricanes, and the like, as well as property rights. 

Thanks to permission from the Environmental Law Institute, which has has graciously allowed us to reproduce Ed’s latest from the National Wetlands Newsletter, we’re able to bring you “Turning Koontz Into an Opportunity for More Resilient Communities,” which posits that the sky is not falling because of the Supreme Court’s decision in that case: 

Many did not see the positive side of Koontz when the decision was released. Almost immediately, many commentators viewed the case as a victory for property owners and a defeat for government regulation. Many alarmist articles were written…

Continue Reading New Article Of Note: Turning Koontz Into an Opportunity for More Resilient Communities

The case that seemingly wouldn’t end — Coy Koontz, Jr.’s continuation of his late father’s case against the St. Johns River Water Management District over the WMD’s demand that they “pay to play” — has ended with its eighth appellate decision (including the now-famous visit to the U.S. Supreme Court), with another win for Koontz.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014), the Florida District Court of Appeals made short work of the WMD’s argument that there were some loose threads left over from the prior decisions. The opinion doesn’t say much about the substantive law, except to say “we said this all before, and we haven’t changed our minds.” 

Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We…

Continue Reading Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again

You know the old saw, attributed to a variety of sources including Samuel Clemens, that “whiskey is for drinking, and water is for fighting over,” but here’s a decision from a U.S. District Court, that shows that whiskey is also for fighting over. Not quite whiskey, but a fungus that is claimed to be created by a nearby distillery.

In Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014), the fight was about “whiskey fungus,” which is created when ethanol is emitted from a distillery and “combines with condensation on Plaintiffs’ real and personal property to ’cause an invisible, naturally occurring fungal spore to ‘germinate’ (start growing) and become a living organism, visible to the naked human eye.'” This stuff “creates an unsightly condition requiring abnormal and costly cleaning and maintenance, early weathering of surfaces,” and is pretty much a nuisance.

More about the case…

Continue Reading It Turns Out That Whiskey (Fungus) Is Also For Fighting, After All

Remember the Lost Tree case? That’s the one where the Federal Circuit concluded that a single parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers’ denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus “scattered wetlands in the vicinity” also owned by the same owner. 

The case got remanded to the CFC, which now has issued its opinion determining the loss of economic value caused by the denial of the 404 permit. The CFC concluded that the “after” value was $27,500, and the “before” value was $4,245,388, a diminiution in value of a whopping 99.4%. Lost Tree Corp. v. United States, No. 08-117L (Fed. Cl. Mar. 14, 2014).

The court held that…

Continue Reading CFC: Denial Of Wetlands Dredge And Fill § 404 Permit = Taking = $4.2M Just Compensation

It’s Friday, so we’re slacking a bit on the blogging. But our colleagues at the Nossaman firm have given us a couple of good pieces for our reading enjoyment.

  • First is “9th Circ. Simplifies Enviro Process For Transit Projects,” by Robert D. Thornton. If his name sounds familiar, it’s because he’s the lawyer who represented the City and County of Honolulu in its succcessful defense of a federal lawsuit. The Ninth Circuit and the District Court recently sided with the City on the project (see our summary of the Ninth Circuit and the District Court rulings), and the plaintiffs have stated that they are not going to seek further review. In other words, this is probably the final substantive chapter in the major legal challenges to the Honolulu rail project. Mr. Thornton notes that the decision is one “of national importance for transit and highway projects” because

…
Continue Reading Worth Reading – The Last Word On Honolulu Rail, And 2013 Eminent Domain Year In Review

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