Environmental law

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The California Coastal Commission today filed its brief in the U.S. 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 issue in the case is whether the Ninth Circuit properly granted aninjunction under the National Environmental Policy Act (NEPA), 42U.S.C. § 4321, the law that requires federal agencies to consider theenvironmental impacts of their proposed actions and reasonablealternatives to those actions.  The CCC’s brief summarizes its argument:

According to the Navy’s own assessment, its training exercises “will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent death or injury.” App. 163a. Congress in the Marine Mammal Protection Act (MMPA), however, authorized the Secretary of Defense to exempt certain military activities from the MMPA despite their impact on marine…

Continue Reading California Coastal Commission Brief in Navy Sonar Case

In a brief opinion (the case was decided without oral argument), the Ninth Circuit affirmed the Hawaii district court’s dismissal of claims that the security zone established by the U.S. Coast Guard violated the protester’s First Amendment rights.  Even if the protest was symbolic speech, the security zone was a reasonable time, place, and manner restriction.  The court also held that the Coast Guard has a categorical exemption from NEPA, and no EIS was required.  Wong v. Bush, No. 07-16799 (Sep. 5, 2008).  Continue Reading 9th Circuit: No First Amendment, NEPA Violation in Kauai Superferry Protest

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

Our brief, filed earlier this week, is posted here.Continue Reading Additional Amicus Briefs in Navy Sonar Case

On August 14, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239. 

In that case, environmental groups challenged the use of MFA sonar, asserting that the Navy had not completed an environmental impact statement (EIS) to study the possible harms to marine mammals.  MFA sonar is used to detect quiet diesel-electric submarines, which the Navy considers to be one of the top threats to surface ships.  The Ninth Circuit agreed with the plaintiffs and enjoined the exercises, imposing restrictions on how the Navy trains with the sonar, even though the record in the case contained “no evidence that marine mammals have been harmed by the use of MFA sonar in the…training area.”  The Supreme Court agreed…

Continue Reading Admirals’ Amicus Brief in SCOTUS Navy Sonar Case

Check out Jay Fidell’s op-ed in the Honolulu Advertiser, “Appeals court decision threatens our biotech sector” about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). 

In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae.  Jay writes:

The case involves a permit for importation of a geneticallyengineered algae, a choice target of environmental activists. But thecourt decision is not limited to genetically modified organisms: Itcovers all animal and plant organisms, GMO and otherwise. And itdoesn’t affect just permit applications — it also affects permitsalready granted for organisms already in the state. Agriculturalresearch and cultivation also will undoubtedly be affected. Hard casesmake bad law.

The retroactive nature of the decision reminds usof the Superferry. There, the applicant did everything the Departmentof Transportation asked for and got its approval. Then, years later,the court imposed additional requirements. How different is that fromwhat happened here? The applicant here did everything Agriculture askedfor and got its permit. Then, years later, the court imposed additionalrequirements. How can you rely on what government tells you? How canyou do a business plan? How can you get investors?

Our summary of the decision here. 
Continue Reading Op-Ed on GMO Algae Case

My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.”  It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the ocean), thus crowding onto the public beach.  The editorial rightly recognizes:

Sooner or later, vegetation and waves converge, preventing people frommoving laterally along public land, which law defines as the highestwash of waves at high tide during the highest surf season, “usuallyevidenced by the edge of vegetation or by the line of debris left bythe wash of the waves.”

As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are…

Continue Reading Shoreline Boundaries And Shoreline Setbacks

The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).  The court ruled on two issues related to the importation of genetically-modifiedalgae into Hawaii by the tenant of a State-owned facility on the BigIsland of Hawaii:

This appeal presents two issues: (1) whether the Board wasrequired to comply with the Hawaii Environmental Policy Act (HEPA),Hawaii Revised Statutes (HRS) chapter 343, before approving a permit toimport genetically engineered (GE) algae for production in a facilityon state lands; and if so, (2) whether two prior environmental impactstatements (EISs) prepared for the state lands where production of theGE algae is planned satisfied the Board’s HEPA obligations.

Slip op. at 1-2.  I attended the oral arguments and blogged about the issues in the case here.

The ICA held the Board should have required an EA. The court rejected the Board’s argument that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process for the importation of microorganisms worked an implied repeal of the EA requirement.  The court held that the plan to grow the organisms at the state facility is “an action that proposes the use of state land,” slip op. at 13, and therefore “HRS § 343-5 plainly and unambiguously required the preparation of an EA before the Board could approve [the] application.”  Id.  The court held that although chapters 343 and 150A may “overlap in their application and purpose, they do not conflict and both can be given effect.”  Id. at 16.

On the second issue, the ICA held the two earlier EISs did not satisfy the Board’s obligations:

The two EISs, which were prepared more than three and two decades ago, respectively, confirm that the NELH and HOST parks were still conceptual or in their infancy stages when the EISs were prepared.  It is clear from the EIS that as the nature and details of individual projects to be conducted at either park became known, further HEPA review was expected. 

Slip op. at 21.  The ICA did not address how this holding squares with section 343-5’s requirement that the EA be accomplished at “the earliest practical time.”  The Hawaii Supreme Court addressed this requirement in the “Koa Ridge” case.  Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006). 
Continue Reading HAWICA: EA Required For Importation of GMO Algae

The recording of today’s oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603 has been posted here.  (Be prepared — it’s a 93mb file).  The briefs of the parties are posted here.

A report from KHON-TV2, with video of the site and the arguments is posted here.

The appeal involves the question of whether the City should haverequired the Kuilima Resort to prepare a supplemental EnvironmentalImpact Statement.

Update: Charley Foster has posted a summary of the arguments and analysis.  Continue Reading Oral Arguments in ICA Appeal on Kuilima EIS (mp3)

On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.  Here are the main merits briefs of the parties:

The issue, as stated by the Appellants:

Does the Hawai’i Environmental Protection Act (HEPA) [Haw. Rev. Stat. § 343-1, et seq.] and the Environmental Council Rules (HEPA Rules) obligate a public agency to determine whether a project requires a Supplemental Environmental Impact Statement (Supplemental EIS or SEIS) where new circumstances and evidence bring to light likely increased environmental impacts not previously dealt with in the project’s twenty-two (22) year old EIS?

Opening Brief at 1. …

Continue Reading Merits Briefs in Upcoming ICA Appeal on Kuilima Resort Environmental Impact Statement

Remember that whopping $36.8 million inverse condemnation judgment against the City of Half Moon Bay, California by the U.S. District Court back in November 2007?  Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  The city said at the time it was going to appeal, and it hired some pretty impressive guns to do so.  Now, however, it appears that the city has changed its mind, as reported in the San Francisco Chronicle’s story, “Half Moon Bay’s plan to avert fiscal ruin.”

In a move to save their citygovernment, Half Moon Bay officials tonight approved a settlementagreement with a developer who won a $36.8 million court judgment lastfall that threatened to leave the city in financial ruins.

The Half Moon Bay City Council signed off on an $18 millionsettlement to developer Charles “Chop” Keenan, whose trustee wanted tobuild an 83-unit subdivision on…

Continue Reading Discretion Wins Out Over Valor in Half Moon Bay Inverse Condemnation Case