Environmental law

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Earlier today, the Hawaii Supreme Court heard oral argument in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)

As we wrote earlier today in our post-argument summary, it does not look good for the City and the State.

If you want to listen to the arguments, stream the recording here:

Or you can download it here.

Hawaii law requires that the government must undertake a survey and consult with persons who are descendants of “iwi kupuna” (Native Hawaiian buried remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be …

Continue Reading HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review?

As of 10:00 a.m., the $4+ billion Honolulu rail project is officially in jeopardy.

Update: full report on the oral arguments here.

The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and it does not look good for the City and the State. The court’s majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to “segment” or “phase” it, and thereby put off evaluation of the entire project’s possible impact of burials. 

In the film “The Descendants,” George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title. Hawaii law requires that the government consult with…

Continue Reading The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger

In a big development project such as the $4+ billion Honolulu rail, must environmental review under state law be undertaken taking into account the entire project, or can it be done on a segment-by-segment basis?

That’s the question the Hawaii Supreme Court will consider this Thursday, May 24, 2012, when it hears oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611. The circuit court didn’t think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the environmental reviews (the alleged impact of the the project on archaeological sites, including burials).

Here’s the short description from the Judiciary web site:

Kaleikini argues that the Honolulu High-Capacity Transit Corridor Project should be enjoined because the Programmatic Agreement and Final Environmental Impact Statement for the project permitted a “phased approach” to the required archeological inventory survey (AIS), rather than requiring that an…

Continue Reading Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?

Here’s what folks are saying about yesterday’s 9-0 Supreme Court decision in Sackett v. EPA, No. 10-1062 (Mar. 21, 2012):

Continue Reading Sackett Round Up

Update 2: more commentary here.

Update 1: Two quotes worth noting:

“Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA decision that their land contained navigable waters of the United States ‘having never seen a ship or other vessel cross their yard.”” Oh Justice Scalia: you complete me. (via the WaPo)

Justice Alito (mirroring his oral argument question): “The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if…

Continue Reading Unanimous SCOTUS: Property Owners Entitled To Judicial Review Of EPA “Compliance Order”

There’s a feature story in today’s Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short…

Continue Reading Trickle-Down Regulation: Environmental Maze Becomes “Stumbling Block” For The Little Guys

In case you are working today (we are), here’s some light reading to distract you:

Continue Reading Saturday Round Up

This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because “the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that … regulation is too restrictive of Day’s groundwater right and without justification in the overall regulatory scheme.” Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I’m liking the Texas Supreme Court these days.

We’re getting a brief ready for filing today, so I haven’t…

Continue Reading Texas: “The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”

Regulatingparadise Professor Patricia E. Salkin (of the Law of the Land blog) has written this review of Professor David Callies’ Regulating Paradise: Land Use Controls in Hawaii (2d ed. 2010). The review is in the latest edition of the Urban Lawyer (43 Urb. Lawyer 1107 (2011)), the law review published by the ABA’s Section of State & Local Government Law.

Professor Salkin writes:

Unlike mainland states, the history of land ownership and regulation in Hawai’i—dating back to the mid 1800s—is unique and deeply rooted in centralized control both before and after the State became a territory. Callies explains how the State’s oft-studied 1961 land use law continued this trend, with zoning accomplished at the state level. He points out that from this strong tradition of centralized control, however, a new system of land use regulation has emerged with layers of county laws and the influence of myriad federal statutes and…

Continue Reading Book Review: Callies, Regulating Paradise (2d ed. 2010)

In our law review article on Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 103 S. Ct. 2592 (2010), we predicted that “the fractured opinions in the case will be a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010).

It looks like our prediction is (thankfully) being borne out: earlier this week we posted a new article from the Stanford Law Review (here), and now comes another scholarly piece on the judicial takings issue, this time from the Cornell Law Review: Eduardo M. Penalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305 (2012) (pdf available here). Here’s the summary:

In Stop the Beach…

Continue Reading New Article: Judicial Takings or Due Process? (Cornell Law Review)