Environmental law

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Check out the interview with Nalo Farms owner (and Hawaii Farm Bureau Federation president) Dean Okimoto in this month’s Hawaii Business. 

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The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

Disclosure: I represent the Hawaii Farm Bureau Federation.Continue Reading Hawaii Farmers And Ranchers: We Don’t Get No Respect

The U.S. Court of Appeals has denied a petition for rehearing and rehearing en banc in Casitas Municipal Water District v. United States,No. 2007-5153 (Sep. 25, 2008), a decision we noted here.  In September 2008, a panel held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout.  The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback.  The character of the government action was a physical diversionfor public use — the protection of an endangered species.” Slip op. at30.

The per curiam order denying rehearing is available here.  Three Federal Circuit judges dissented, arguing that no physical taking occurred because the federal government did not appropriate water from…

Continue Reading Federal Circuit Denies En Banc Review In Casitas

An Alaska borough has sought Supreme Court review of the Ninth Circuit’s determination in Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008) (a decision we analyzed here). The cert petition is posted here (No. 08-1052).

The Ninth Circuit held a property owner has two choices when faced with what it believes is an erroneous determination by the Corps of Engineers that property contains wetlands: either (1) apply for a very expensive Clean Water Act permit, or (2) don’t get a permit and challenge the Corps’ jurisdiction when the federal government brings criminal or civil charges. The court held that since the Corps’ jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act. 

The borough wanted to develop a parcel fora playground, athletic fields, and associated infrastructure, and askedthe…

Continue Reading New Cert Petition – Corps’ Clean Water Jurisdiction Determination Is Reviewable Now

Eminent domain in the news:

It’s a stark contrast between new and old, progress and past. The tension between the two has landed the university in the middle of a lawsuit that could set a precedent for redevelopment projects under way in Virginia.
A year ago, Norfolk’s Redevelopment and Housing Authority moved to condemn the house and three other buildings to the south of ODU’s University Village, saying the land was in a blighted area and is needed for the university’s expansion.
The owners responded with a suit, saying the housing authority has no right to take their property, in part because the development of University Village in the past decade has cleaned up the blight.
The property owner’s lawyer is my Owner’s Counsel of America colleague Joseph Waldo.

Separately, [Carol] Browner [President Obama’s special advisor on climate change and energy] said the administration was also going to create an inter-agency task force to site a new national electricity transmission grid to meetboth growing demand and the President’s planned renewable energy expansion.Siting has been a major bottleneck to renewable growth, and lawmakers andadministration officials have said they’re likely to seek greater federal powersthat would give expanded eminent domain authorities.Continue Reading Eminent Domain Round-Up

Head’s up on an interesting case from the Court of Federal Claims, Resource Investments, Inc. v. United States, No. 98-419L (Court of Federal Claims, Jan. 23, 2009), a massive opinion (84 single-spaced pages) with what at first glance seems to delve into just about every regulatory takings theory known: temporary takings, categorical takings, partial takings, parcel-as-a-whole, Mahon, Penn Central, First English, Lucas, Tahoe-Sierra, Seiber, delay, and ripeness. And those are just the subjects listed on the caption.

We’re not going to digest the entire opinion here, just hit some of the highlights. The short story is that the U.S. Army Corps of Engineers wrongfully asserted jurisdiction over property in Washington state proposed to be used for a landfill, and asserted that until the owner procured a section 404 Clean Water Act permit, it could not construct the landfill. The Ninth Circuit ultimately agreed…

Continue Reading CFC: Trial Needed On Whether Wrongful Assertion Of Clean Water Act Jurisdiction Is “Extraordinary Delay”

Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368.

The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a “substantial burden” on the religious exercises of Native American tribes for the Forest Service to allow a ski resort to make artificial snow on a mountain considered by the tribes to be sacred. The artificial snow is made from recycled sewage water. 

The Ninth Circuit held the Religious Freedom Restoration Act, a federal statute which requires the government to justify with compelling reasons actions which substantially burden religious exercises, does not apply.  The court held that religious exercises are only burdened under the RFRA only when a person is forced to choose between adhering to their religion and accepting a government benefit, or when civil or criminal penalties…

Continue Reading Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain “Substantially Burden” Religious Exercise?

2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends.

Setbacks

Shoreline setback are a “no build” zone on private beachfront property, measured from a “setback line.”  Hawaii state law establishes a minimum shoreline setback, and the four counties are allowed to establish their own (greater) setbackstandards. In 2008, Kauai enacted what one commentator described as the nation’s “most conservative” shoreline setback regulations (more here), continuing the trend of variable shoreline setbacks measured by historical erosion and accretion rates. For more, check out a U. Hawaii Law Review article on shoreline setbacks, published last year.

Public Access

Shoreline setback lines do not concern ownership, or the boundary between public beaches and private property. Theshoreline certification process under the state Coastal Zone Management Act is not supposed toaffect property rights or determine where the public may or may notaccess.  However, the two concepts continue to…

Continue Reading 2008 Land Use In Review: Shoreline Law

We aren’t officially an “environmental law” blog, and when we do cover the issue, it is mostly on the periphery.  However, in 2008, we hit a couple of significant issues that had some relevance to land use law. 

First, in the U.S. Supreme Court’s first decision of the Term, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy’s interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs.  Why did a land use law blog care about a case involving the Navy’s useof sonar in training exercises off the California coast?  First, as weexplained here,the case is philosophically interesting because of the argumentsregarding when courts should defer to the judgment…

Continue Reading 2008 Land Use In Review: Environmental Law

The return trip of the “Hawaii Superferry” case, Sierra Club v. Dep’t of Trans., No. 29035 (visit our page with all resources on the case here), to the Hawaii Supreme Court at first gloss presents a somewhat metaphysical question: when is duly enacted legislation which on its surface appears to be of general applicability, really meant for a single beneficiary?

This has been the debate thus far on whether “Act 2,” the statute enacted after the Hawaii Supreme Court held in ————————–, that the State Department of Transportation’s exemption of the Hawaii Superferry from detailed environmental review violated the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.  Continue Reading What’s Really At Stake in the Hawaii Superferry “Act 2” Appeal