Environmental law

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The US Court of Appeals has reversed the Court of Federal Claims’ dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084 (June 16, 2009), the property owner claimed a designation of its property (Site 28) by the U.S. Fish and Wildlife Service as a critical habitat for the Mississippi Sandhill Crane — which required it to purchase another parcel as a mitigation measure before it could sell Site 28 to the Navy — was a taking.

The property owner sought just compensation in an inverse condemnation action in the CFC, which entered summary judgment for the government because the owner failed to assert a property right. The CFC characterized the interest claimed as “the right to sell its property to the government, withoutconditions imposed, in this instance to meet regulatory…

Continue Reading Federal Circuit: Plaintiff Alleged Property Right To Develop Land

The Eminent Domain Law Blog, published by our colleagues at Owners’ Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court agreed yesterday to review. 

Beachfront property owners along Florida’s Gulfcoast, have been tryingto stop an effort by local and state officials to restore the beachthrough renourishment, a process by which sand is dredged from theocean floor, transported through pipes and distributed along erodedbeach areas, in essence adding sand to widen the beach. This proposedbeach renourishment project would cover nearly seven miles of shorelineand widen the beach by approximately 210 feet in Destin, FL.

Akey issue in the litigation thus far, which has moved from CircuitCourt to the First District Court of Appeal to the Florida SupremeCourt, is that by adding sand to the waterfront and restoring thebeach,

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Continue Reading More Background On The Supreme Court’s Beachfront Takings Case

Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

  • Dwight Merriam’s thoughts at IMLA’s Local Government blog.
  • Pacific Legal Foundation’s (the only organization to file an amicus at the cert stage) summary of the issues.
  • Law of the Land blog’s summary.

Continue Reading SCOTUS Beachfront Takings Case Links

In Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a court decision can take property. The ABA Journal’s July 2006 report “Up Against the Seawall” tells the backstory on the case and highlights other beach issues.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits “beach renourishment” without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to…

Continue Reading SCOTUS To Review Beachfront Takings Case: Can A Court Decision “Take” Property?

In United Here! Local 5 v. City and County of Honolulu, No. 28602 (May 22, 2009), the Hawaii Intermediate Court of Appeals held that a developer need not undertake a Supplemental Environmental Impact Statement under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, unless the plaintiff shows a substantive change in the project being reviewed.

The April 9, 2009 oral arguments are posted here.

Continue Reading HAWICA: Plaintiff’s Burden To Show Changed Project Warranting Supplemental EIS

Several diverse items, for your consideration:

  • Columnist George Will opines about the Empress Casino Joliet case — the one where the Illinois Supreme Court held that aregulation imposing a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property.  The U.S. Supreme Court has been asked to review the case. We discussed it here and here (cert petition and amicus briefs included).
  • The ABA Journal writes about George Will opining on the Empress Casino Joliet case.

Continue Reading Monday Round-Up

“Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted.”

Sierra Club v. Dep’t of Transportation, No. 29035 slip op. at 36 (March 16, 2009) (emphasis added)

If you take away nothing else from the 124 pages of majority and concurring and dissenting opinions in the second “Hawaii Superferry” case, remember that sentence.  It’s the key to the case and understanding the Hawaii Supreme Court’s recent willingness to put teeth into judicial review of legislation. In Superferry II, the court faced an interesting jurisprudential issue: whether Act 2, a statute most everyone who was paying attention just knew was designed to cover a single private entity was nonetheless a “general” law under the provision which requires that legislative power over state and county lands…

Continue Reading Hawaii Superferry II: Rooting Out Pretext In Legislative Actions

“One more victory such as this and we shall be ruined.”

So lamented Pyrrhus, the king of the eponymous victory — a win so costly it cannot be savored. It’s a term the New London Development Corporation, which prevailed in U.S. Supreme Court in the now-infamous eminent domain case Kelo v. City of New London,545 U.S. 469 (2005) must know all too well. After its victory permitting the condemnation of people’s homes for “economic development,” not only did the public revulsion at the outcome result in a majority of states attempting to curtail eminent domain, the NLDC’s Fort Trumbull project shriveled up in the glare of public scrutiny and outrage and the properties seized remain vacant. The case stands as a lesson for litigants who believe that a court decision represents the final word on an issue.

If the public reaction to the Hawaii Supreme Court’s decision in round 2 of the Hawaii Superferry case is any measure, Kelo may offer some lessons. A review of some of the comments following the reports about the court’s decision and its consequences by Honolulu’s two daily papers reveals a surprising level of anger and frustration:

The editorial pages are also getting into it:

Environmental and community-action groups such as the Sierra Club andMaui Tomorrow now find themselves in the crosshairs of many residentsfrustrated by recent developments with the Hawaii Superferry.

  • Ending Superferry service would be a blow to Hawaii (Star-Bulletin)

    As a result, the notion of an unfriendly business climate in Hawaiigains credibility; an enterprise with nearly 300 employees has beenshut down indefinitely, maybe permanently; travelers, farmers andothers who have come to rely on the service are left without service;and the state faces a possible loss of millions of dollars in ferryrevenue and further litigation.

    Like Kelo, the two Hawaii Superferry decisions by the Hawaii Supreme Court have starkly illustrated for the public the practical consequences of the laws they accede to. In Kelo, the veil was finally lifted from the public’s eyes as to how eminent domain really works, and the inherent unfairness in how the condemnation power is exercised.  After Superferry, it seems people are beginning to understand how environmental laws can be leveraged to take down a popular service that has appeared to inflict no environmental harm for the year it has been in operation. Make no mistake: the goal of the litigation was never simply to protect the process and insure that all information was gathered so that a good decision would result — it was designed, at least in part, as DBTD – Death By a Thousand Days. And it appears to have succeeded.

    It remains to be seen whether the anger expressed translates to action as in Kelo and whether the legislature will consider streamlining or revising the EA/EIS process. For an example of how the U.S. Supreme Court dealt with a similar issue, see this post on Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov. 12, 2008).Continue Reading Lessons For Superferry From The Kelo Aftermath?

    DeathStar2 The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.

    A certain segment of Hawaii’s population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don’t view it so malignantly, just as a much needed and long overdue alternative to interisland transportation, or as a refutation of Hawaii’s reputation as a horrid place to conduct a business…but work with me here).

    If Superferry I — in which the Hawaii Supreme Court dealt what seemed to be a crippling blow to the Lingle administration’s fast-track environmental exemption was Episode IV — then the Legislature’s reaction to the decision by passing Act 2 seemed like The Empire Strik[ing] Back.

    We now have reached what appears to be the end of the tale, however…

    Continue Reading A Lucasesque View Of The Superferry Saga

    We’ve read all 124 pages of the Hawaii Supreme Court’s opinion (warning: massive pdf) and the concurring and dissenting opinion in the “Hawaii Superferry” case, Sierra Club v. State Dep’t of Transportation, No. 29035 (March 16, 2009), and will post about it soon.

    In the meantime, enjoy the media scrum which includes reports from the Honolulu Advertiser, the Honolulu Star-Bulletin, and commentary from the always-insightful David Shapiro.

    Or for you wonky types, visit our Superferry page (with briefs and media links to Superferry Part I), review the archive of our live blog of the December 18, 2008 oral argument, or view the briefs of the parties.Continue Reading Coming Attraction: Superferry Part II