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Just in case you wanted even more to read tonight before tomorrow’s Hawaii Supreme Court oral arguments in the Hawaii Superferry appeal redux, posted below is a nearly complete set of briefs. Some are upwards of 2 MB, so you — and your internet service provider — have been duly warned.

Believe it or not, this is not a complete set of briefs (it’s somewhat ironic that “environmental litigation” can kill so many trees), but only those that seemed to us likely to be of interest when we scanned the files at the Clerk’s office. The case involves three major parties (Sierra Club, State of Hawaii Department of Transportation, and the Hawaii Superferry) and there are not only appeals, but cross-appeals, so yes, there are other briefs not included here.

For the Court’s summary of the issues in the case, go here. For a summary of what goes on…

Continue Reading More Superferry Round 2 Briefs

Another reminder: tomorrow morning, the “Hawaii Superferry” litigation is back in the Hawaii Supreme Court Round 2, with oral arguments scheduledto commence at 9 a.m.  I’ll be attending the arguments, and technology and typing skills permitting, live blogging it.

Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday, November 18, to tune in. You don’t need special software, just a web browser.

For those not familiar with appellate oral arguments, here’s a short primer/FAQ:

Why oral argument? –  Appellate oral argument has been described as the Court’s “conversation with counsel” about the case and the law.  Oral argument can illuminate legal or logical problems not evident from the briefs and which may not otherwise be discovered, distill arguments by testing them, and allow the advocates to respond to the Court’s specific concerns. See, e.g., Blair v. Harris…

Continue Reading Live Blogging The HAWSCT Superferry Oral Arguments 12.18.08

The case that would not go away, the “Hawaii Superferry” litigation, is back in the Hawaii Supreme Court this week for Round 2, with oral arguments scheduled for 9 a.m. on Thursday, December 18, 2008.  The Court generally allocates 1/2 hour per side, for a total of one hour of argument (which may be extended at the Court’s discretion, but it rarely is).

I’ll be attending the arguments, and technology and typing skills permitting, live blogging it.  Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday to tune in.

The key briefs of the parties are posted below:

  • (Hawaii Superferry filed an Answering Brief, which “incorporatesby reference the arguments set forth in the State’s Answering Brief,filed August 18, 2008.”)

The Court’s web site describes the issues in…

Continue Reading Hawaii Superferry Supreme Court Briefs

A “SLAPP suit” is a “strategic lawsuit against publicparticipation,” and many states have anti-SLAPP suit statutes designed to thwartretaliatory lawsuits that may chill the public’s willingness to exerciseFirst Amendment rights.  For example, California’s statute definesSLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16. The anti-SLAPP statute provides that such lawsuits may be dismissed. In Club Members for an Honest Election v. Sierra Club, No. S143087 (Dec. 15, 2008), the California Supreme Court held:

Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP statute, provides that a civil cause of action may be dismissed as a strategic lawsuit against public participation (SLAPP). Section 425.17, subdivision (b) (section 425.17(b)) provides an exception to the anti-SLAPP statute by exempting some actions from dismissal. Here, we…

Continue Reading Cal. Supreme Court: Anti-SLAPP Suit Exemption Not Applicable Unless Entirety Of Case For Public Benefit

Along with my Damon Key colleague Mark Murakami, I authored a commentary published today by the Honolulu Advertiser about the recent U.S. Supreme Court decision in the Navy sonar case, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008):

Ruling preserves Navy strength in defense

The United States has done more than any other country to protect whales, porpoises, seals and other marine mammals. In 1973, for example, Congress enacted the Marine Mammal Protection Act, a comprehensive law prohibiting hunting, killing, or even harassing them.

On Nov. 12, the U.S. Supreme Court balanced protecting marine mammals with the Navy’s use of sonar to detect silent diesel-electric submarines. In Winter v. Natural Resources Defense Council, the court voided strict rules imposed on sonar training in Southern California waters, declaring judges should hesitate before second-guessing the Navy’s judgment.

Environmentalists claimed mid-frequency active (MFA) sonar frightens or injures whales.

Continue Reading Our Honolulu Advertiser Op-ed on Navy Sonar Case

Given that Honolulu voters recently approved a $4B-plus rail system, an article from the San Francisco Chronicle about a new California law encouraging “local governments and builders to concentrate growth in urban areas orclose to public transportation hubs in an effort to reduceCalifornians’ use of cars and lower their greenhouse gas emissions” should be of some interest. In other words, development is “encouraged” in urban areas in “multifamily urban properties” (apartments).

One of the more interesting issues is whether people want to live in these areas, or whether — like so many other things such as mass transit — it is a case of “good for others, but not for me.” The article quotes the attorney for California Major Builders Council

“Our industry very much supports the goal of building morehigh-density projects in blighted areas, doing redevelopment andtransit-oriented developments,” he said. “There is a demand for thistype of development…

Continue Reading New California Law: You Shall Live Near Transit

An opinion today from the California Fifth District Court of Appeals: Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist., No. F03956 (Nov. 11, 2008). The case involves whether a local air pollution control agency must “actively” assess the impacts of agriculture “volatile organic compounds” (aka cow waste) before adopting air pollution control rules.  The court held that it must.

But what really grabbed me was the plaintiff: “Association of Irritated Residents.”  (Oh, I get it: “AIR”).  Reminds me of those catchy names plaintiff’s groups often use (see, e.g., United States v. SCRAP (Students Challenging Regulatory Agency Procedures), 412 U.S. 669 (1972)), and the cheeky acronyms that float around the land use arena to describe motivation (e.g., NIMBY), which we discussed in this post.

But I think “Association of Irritated Residents” is the best. Pretty much one-size-fits-all.Continue Reading Best Plaintiff Group Name: Association of Irritated Residents

Yesterday’s Supreme Court decision in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 has generated a fair amount of media and blog coverage, both nationally and in Hawaii.  Why does a land use law blog care about a case involving the Navy’s use of sonar in training exercises off the California coast?  First, as we explained here, the case is philosophically interesting because of the arguments regarding when courts should defer to the judgment of the executive branch and the military. Second, we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), supporting the Navy’s arguments.

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Continue Reading Navy Sonar Case Round-up

The U.S. Supreme Court issued a ruling today in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. The Court vacated the injunction the California district court imposed:

The preliminary injunction is vacated to the extent challenged by theNavy. The balance of equities and the public interest—which were barelyaddressed by the District Court—tip strongly in favor of the Navy. TheNavy’s need to conduct realistic training with active sonar to respondto the threat posed by enemy submarines plainly outweighs the interestsadvanced by the plaintiffs.

Along with my Damon Key colleagues Mark Murakami and Christi-Anne Kudo Chock, and co-counsel Mike Lilly and Ted Meeker, I filed an amicus brief in the case.  Our brief set forth the arguments of nine retired Admirals, including a former Chief of Naval Operations,former Commanders of the Pacific (Pearl…

Continue Reading Decision in Navy Sonar Case