Environmental law

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In United States v. Milner, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors Act of 1899 because their land has eroded and their “shore defense structures” (rip-rap and bulkheads) now intersect with the boundary between public tidelands and their private property.

The case involves tidelands held in trust by the federal government for the Lummi Nation, pursuant to treaty and President Grant’s executive order. Upland owners erected and maintained structures on the tidelands to blunt the force of the waves, initially under a lease from the Lummi Nation which expired in 1988. The public-private boundary is the mean high water (MHW) mark, and over the years, the shoreline eroded and as of 2002, many of the structures were seaward of the…

Continue Reading Ninth Circuit: Let It Erode – Littoral Owners Have No Right To Install Shore Defense Structures On Their Land

Liveblog On Tuesday, October 13, starting at 10:00 am (Hawaii Standard Time), the Hawaii Supreme Court will hear oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here). We will be covering the arguments live here. 

Details of the argument schedule are posted on the Judiciary site here (the site notes the arguments will be held on “Thursday” October 13, but we’ve confirmed with the Clerk that’s a typo, and the date is Tuesday, October 13).

The last time we live blogged Hawaii Supreme Court oral arguments was in the second “Superferry” appeal. We used the Cover it Live application which seemed to work well and does not require the viewer to install any extra software beyond a web browser, so we’re using it again.

Go to this page to check if the viewer window works…

Continue Reading Upcoming Live Blog Of HAWSCT Arguments In Ala Loop Homeowners Appeal: Are State Zoning Laws “Environmental” Statutes?

The property owner has filed a brief responding to the amici brief supporting the application for writ of certiorari which urges the Hawaii Supreme Court to review the Intermediate Court of Appeals’ decision in Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008). In that case, the ICA held that unless a project changes, a supplemental EIS under Haw. Rev. Stat. ch. 343 is notrequired, even if the circumstances do.

The application and the amici brief urge the Hawaii Supreme Court toadopt a rule requiring a supplemental EIS even when a project does notchange if the “setting,” “circumstances,” or “context” can be allegedto have changed by a single plaintiff who meets the minimal requirements for environmental standing.The amici brief emphasizes the purpose of chapter 343, arguing the ICAmajority opinion was a “cramped” reading of the law and…

Continue Reading Response To Amicus Briefs In Kuilima/Turtle Bay HAWSCT Cert Application

In “Supreme Court’s Regulatory Takings Case Draws Widespread Interest,” the New York Times reports about yesterday’s filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The Supreme Court would likely resist such overt involvement intakings disputes, according to Jay Austin, senior attorney with theEnvironmental Law Institute.

“The only thing that petitionershave to cite to even suggest any precedent is a concurring opinion byformer Justice Potter Stewart in another beach case 40 years ago,”Austin said.

“Well, he’s the justice who famously said aboutobscenity that ‘I’ll know it when I see it.'” This case would put thejustices in the same position, he said, adding: “Just like they had toscreen films in the basement of the Supreme Court to see whether theywere obscene, they’d have to wade into all of…

Continue Reading NY Times On Gov’t Amici In Florida Beach Judicial Takings Case

Several amicus briefs have been filed supporting the government’s position in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The government’s merits briefs are posted here.

We filed an amicus brief supporting the property owners, which is available here. The property owners’ merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here. All briefs and more about the case on…

Continue Reading Amicus Briefs Supporting The Gov’t In Florida BeachTakings Case (aka Judicial Takings Case)

WavesOn Tuesday, November 10, 2009, at 9:00 a.m., the Hawaii Intermediate Court of Appeals will hear oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175. The arguments will take place in the Supreme Court courtroom at Aliiolani Hale.

The ICA panel will consist of Judges Nakamura, Watanabe and Foley.

The issue in thatcase is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State gets it every time.  

The trial court held that Act 73…

Continue Reading Upcoming Hawaii Appellate Court Oral Arguments In Beach Takings Case

Here are the respondents’ merits briefs in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief supporting the…

Continue Reading Government Merits Briefs In Florida Beach Takings Case aka The Judicial Takings Case

Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the…

Continue Reading Amicus Brief Supporting Gov’t In Beachfront Takings Case: Statute Didn’t Eliminate Common Law Rights, It Enhanced Them

Environmental groups led by Earthjustice have sought leave to file an amici brief supporting the pending application for a writ of certiorari in the case involving the EIS for the Turtle Bay/Kuilima resort development, Unite Here! Local 5 v. City and County of Honolulu, No. 28602, which seeks review of the Intermediate Court of Appeals’ decision reported at 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008). The motion and the proposed brief are posted here. The application for writ of certiorari which the amici are supporting is available here.

In Unite Here!, the ICA determined that unless the project changes, a supplemental EIS is not required. A link to the ICA’s decision and the opinion of the dissenting judge is posted here. The briefs filed in the ICA are posted here.

The application and the amici brief urge the Hawaii Supreme Court…

Continue Reading Amicus Brief In Kuilima/Turtle Bay Appeal: Change In “Context,” But Not Project, Enough To Trigger Supplemental EIS

On September 4, we filed an amicus brief on behalf of Owners’ Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court’s reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court’s decision violated due process.

Our brief focuses on three issues:

This case concerns whether the ‘background principles” exception to per se takings in Lucas v. South Carolina Coastal Council…

Continue Reading Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case