Environmental law

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In Sierra Club v. Bosworth, No. 05-16989 (Dec. 5, 2007), the US Court of Appeals for the Ninth Circuit held that the US Forest Service and Department of Agriculture did not properly determine that all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States were categorically exempt from the environmental impact statement process.

Tom Caso posts his thoughts on the opinion on The Opening Brief.Continue Reading Ninth Circuit Deals With Categorical EIS Exemptions

In UFO Chuting of Hawaii, Inc. v. Smith, No 05-16545 (Nov. 28, 2007), the Ninth Circuit held:

We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales.

Read the entire opinion here.  Oral argument recording here (9mb wma).  Professor Shaun Martin’s comments on his California Appellate Report about the case get right to the point:

Sometimes when you win, you only think you win. Therotund woman needs to finish her aria. And you need to cash the check.Otherwise, that celebratory party you’re having may come to anunexpected — and totally crashing — halt. Especially when you arelitigating against a state.

Why do I say these things?  Well, first, because they’re true.  And, second, because this case definitely brings these lessons home.…

Continue Reading 9th Circuit: Federal License Does Not Preempt Hawaii’s Whale Protection Law

I sat in on today’s oral arguments in the Hawaii Intermediate Court of Appeals (the nondiscretionary appeals court of first resort) in an interesting case, Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855.  From the arguments and a quick review of the briefs, the primary issue in the case is whether the Board of Agriculture was required to undertake an Environmental Assessment pursuant to Haw. Rev. Stat. ch. 343 prior to granting a permit for the importation of genetically-modified algae into Hawaii by the tenant of a State-owned facility on the Big Island of Hawaii.

The recording of the arguments can be downloaded here (63mb mp3).

Several “community groups” filed suit against the Board, claiming that an EA was required because the imported GMO algae would be used in the state-owned facility, and therefore “[p]ropose[d] the use of state or county lands,” a triggering…

Continue Reading ICA Oral Arguments in GMO Algae / EA Appeal

The issues in the lawsuits about the Hawaii Superferry Environmental Assessment dwell on legal technicalities such as standing, the statute of repose, and the standard of review.  But the case seems to have touched a deeper nerve, serving as the crucible for wider issues not limited to the Superferry.  For a flavor, read the LA Times’ report of the Kauai Superferry protests here and the Honolulu Advertiser’s story here.

In that vein, I just revisited a Land Use Prof Blog post from earlier this year by Professor Paul Boudreaux entitled “From NIMBY to … ‘Drawbridge Protectionism’.”  The post, as its title suggests, discusses economic and land development versus environmental and cultural claims, and has become more topical in the wake of the Superferry case.  Professor Boudreaux makes some good points:

“NIMBY” is perhaps the most overused term in land use policydebates, even though the…

Continue Reading ▪ “Drawbridge Protectionism,” the Superferry EA / EIS, Raindrops, and Floods

Thanks to Mark Murakami for pointing out an article in today’s NY Times, “Once Reluctant, Retailers Now Rush to Hawaii,” about the growing presence of national stores such as Wal-Mart, Home Depot, Whole Foods, and Walgreens:

For years, large mainland-based retailers tended to steer clear of the islands that make up the state of Hawaii because of the extremely high costs of buying land and shipping goods, as well as a tight supply of construction workers and retail employees.

But in the last four years, a wave of retail development has washed over Hawaii, as the state has experienced a post-2001 rebound in tourism and growing optimism among residents, as job growth has been strong and home prices in many areas have roughly doubled since 2003.

. . . .

Rosalind J. Schurgin, a principal at the Festival Companies, a Los Angeles-based firm that is redeveloping the Royal…

Continue Reading ▪ NY Times on National Retailers, Honolulu Advertiser on Hawaii’s Business Climate

When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit?  Are there any systematic checks in place to keep the courts from being co-opted for political ends?  These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).  This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion. 

An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.Continue Reading ▪ Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

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Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

…
Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

The “Daily Dish” blog at the Honolulu Advertiser poses an intriguing question: “Should anyone own the beach?”  The issue, however, isn’t about beach ownership, but rather restriction of access to publicly-owned beaches via private roads:

This past August a group of homeowners in Kailua installed a 6-foottall gate — with a combination lock! — at the end of their private roadto stop people from using the right-of-way to the beach.

Naturally,this has infuriated a collection of Kailua residents, surfers andbeachgoers who are fed up with wealthy homeowners restricting access toa beach everyone should be able to enjoy.

The comments posted are worth reading, if only to get a feel for how the issue — and the law — is perceived — and often mistakenly applied.  Many beachfront property owners are not (contrary to common perception) “wealthy homeowners” intent on claiming public beaches as their own.  Many are…

Continue Reading ▪ Beach “Ownership” and Access Over Private Property

What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption? 

That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).

This post looks at the substantive issue in the case — whether DOT erred when it determined that improvements to Maui’s Kahului Harbor were within the categorical administrative exemptions to the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, and therefore no Environmental Assessment was necessary. The Hawaii Supreme Court held DOT was wrong, and the improvements were not exempt.  The issue of “standing” took up a majority of the court’s opinion, and I deal with that issue in this post.

I won’t go into a blow-by-blow outline of the court’s reasoning, which…

Continue Reading ▪ Superferry EIS Case Summary pt. I: Do Statutory Exemptions Mean Anything?