Environmental law

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In Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of “use” of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines.

Section 343-5(a)(1) requires that”an environmental assessment shall berequired for actions that . . . [p]ropose the use of state or countylands,” and in earlier cases, the Court held that installation of a new drainage line beneath a public road qualified as “use” of state land, Kahana Sunset Owners Ass’n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997); as did construction of an underpass beneath a…

Continue Reading HAWSCT Curtails Definition of “Use of State or County Lands” in Environmental Law

You may have been wondering why we’ve been closely following the U.S. Supreme Court arguments 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. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy’s use ofsonar, because the Court has been asked by the government and amici toexamine the standards applicable to injunctions in NEPA cases.  

Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue — when the courts should defer to the judgment of the other two branches — is important.

The first is “Did Environmental Quibbling Facilitate the Attack on …

Continue Reading The Navy Sonar Case and Kelo

The US Supreme Court heard oral arguments today in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast.  My Damon Key colleague Mark Murakami has posted a copy of the transcript on his hawaiioceanlaw blog here and also points out that one of the questions by Chief Justice Roberts captured the essence of the amicus brief he and I filed on behalf of nine admirals and several civic organizations:

CHIEF JUSTICE ROBERTS: I think that’s — I think that’s quite right. My question, though, is that at no point that did the district judge undertake a balancing of the equities, putting on the one side the potential for harm to marine mammals thatshe found — and that’s your point about the record — and putting onthe other side the potential…

Continue Reading Oral Arguments in Navy Sonar Case

Just a couple of days before oral argument, the U.S. government has filed its Reply Brief in the U.S. Supreme Court case involving the Navy’s use of sonar off the California coast.  We filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups, posted here. 

My Damon Key colleague Mark Murakami has posted a resource page about the case, with links to all of the briefs and selected media coverage here.Continue Reading Government Reply Brief in Navy Sonar Case

A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that the “public trust” is enforceable by the public against the government, and that wildlife is subject to the trust.

The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine.  The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action.  The court of appeals agreed, holding (1) birds and other wildlife are part of the “public trust,” (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.  

The court held…

Continue Reading Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach

Three more amicus briefs have been filed in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

Arguments are scheduled for October.  Other briefs in the case, including the amicus brief we filed on behalfof nine retired Admirals and several service support groups, are postedhere.Continue Reading Further (Final?) Amicus Briefs in Navy Sonar Case

The Ecological Society of America has filed a brief amicus curiae urging the Supreme Court to uphold the Ninth Circuit’s injunction in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

In the case below, the district court and the Ninth Circuit both determined that the U.S. Navy had likely violated the National Environmental Policy Act (NEPA) by failing to issue an environmental impact statement for its ongoing training exercises off the Southern California coast. The courts agreed with the Navy’s own environmental assessment that its use of mid-frequency active sonar would irreparably harm various whale species. On that basis, the district court issued—and the Ninth Circuit affirmed—a carefully tailored injunction that allowed the training exercises to continue using appropriate mitigation measures while the Navy conducted its environmental impact statement.

Continue Reading Ecological Society Amicus Brief in Navy Sonar Case

Is a determination by the Corps of Engineers that property contains “waters of the United States” and is therefore subject to regulation under the Clean Water Act a “final agency action” subject to judicial review under the Administrative Procedures Act?  According to the Ninth Circuit, no. 

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers, No. 07-35545 (Sep. 12, 2008), Fairbanks wanted to develop a parcel for a playground, athletic fields, and associated infrastructure, and asked the Corps for a determination whether any of the property was “wetlands.”  The Corps replied that the entire parcel was wetlands and was subject to regulation under the Clean Water Act.  In other words, before Fairbanks could place any fill material on the property, it must obtain a section 404 permit from the Corps. Fairbanks exhausted its administrative remedies, then challenged the determination in court asserting the wetlands determination was erroneous.…

Continue Reading Ninth Circuit: Court Has No Jurisdiction to Review Corps’ Clean Water Act Jurisdictional Determination

The Natural Resources Defense Council has filed its brief in the US Supreme Court case about the Navy’s use of mid-frequencyactive (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239:

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings. The consequence of the Navy’s argument—that CEQ was entitled to sit as a “court of errors” in review of the district court’s findings—ignores not…

Continue Reading NRDC Brief in Navy Sonar Case