Environmental law

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Interesting item in today’s Advertiser “Bureaucracy Buster” column, where a reader asks whether streams are “public property” —

Q. I was walking in a stream and was told by a security guard that the stream was private property as well as all the land surrounding and I could not be in it.

It was my understanding that Hawai’i streams are public property and the public can be in them. What is the law?

The response correctly notes the answer is “no,” that Hawaii streams are not like beaches and can be privately owned.  Worth a read.Continue Reading ▪ Streams as “Public” Property

The question of “which came first, the Environmental Assessment exemption or the challenge?” is providing an interesting illustration of the metaphysical issue of what is the impact of a government act subsequently ruled to be illegal.

In denying the plaintiff’s request for a temporary restraining order, the Fifth Circuit court did not rule on the defense raised by the State and Hawaii Superferry to the Kauai lawsuit objecting to the State’s exemption of the Superferry from completing an Environmental Assessment under Haw. Rev. Stat. ch. 343.  However, as a question that likely goes to the court’s subject matter jurisdiction, the issue must be dealt with, eventually.

The statute of repose in chapter 343 provides for a 120-day challenge period that starts with the agency’s decision to either “carry out or approve” the action.  Haw. Rev. Stat. § 343-7(a) provides:

Anyjudicial proceeding, the subject of which is the lack of…

Continue Reading ▪ The Metaphysics of the Kauai Superferry Statute of Repose

Charley Foster at Planet Kauai has written up the details of the Superferry TRO hearing on Kauai.  Check it out.

Update: Here’s his detailed report.  The critical issues appears to be the 120-day statute of repose to institute challenges under Haw. Rev. Stat. § 343-7(a):

The plaintiffs seemed to view themselves as essentially in the same position as the Sierra Club in its recent successful injunction motion on Maui. However the court expressed its doubts and pointed out that, unlike the plaintiffs here, the Sierra Club filed an objection to the exemption granted Superferry by HDOT two and a half years ago and within the 120-day period required under section 343 of HEPA. Judge Valenciano pointed out that the supreme court’s decision made special mention of this fact – explicitly placing the event triggering the clock on this time limitation back to the grant of the exemption…

Continue Reading ▪ Planet Kauai Blogs the Kauai Superferry TRO Hearing

Nineteen months after the briefing was completed, but only several days before the Superferry was scheduled to commence operation, the Hawaii Supreme Court issued a unanimous order, holding that the State’s decision to exempt the improvements to Kahului Harbor necessary for the Superferry’s operation from an environmental assessment was erroneous.  The Order noted that an opinion of the court would follow.  The opinion followed today. 

No real surprises, but the court’s analysis of “procedural standing” and when a court should defer to an administrative agency’s determination will make good fodder for a law review article.  Charley Foster’s summary here, and the Honolulu Advertiser’s story here.

Briefs of the parties are posted here.Continue Reading ▪ HAWSCT Issues Opinion in Hawaii Superferry EIS Appeal

Here are the briefs of the parties in the “Hawaii Superferry EIS” appeal, decided by the Supreme Court of Hawaii last week.  These should clear up any questions about what the litigation is about, and what the parties argued. 

Update: Charley Foster at Planet Kauai has posted a succinct summary of the briefs and the legal arguments, and included some thoughts about the future:

The question left wide open – and that will definitely find its wayback into the courts – is what will be the scope of an environmentalassessment. The state and Superferry will argue that it ought to belimited…

Continue Reading ▪ Superferry EIS Appeal: Hawaii Supreme Court Briefs

In The Access Fund v. United States Dep’t of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment’s Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is…

Continue Reading ▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

Much of the discussion about the recent Hawaii Supreme Court order in the “Superferry” case seems to overlook a few things:

  • HAWSCT did not order the Hawaii Superferry to do an Environmental Impact Statement (EIS) for operating, at least as far as I can tell.  The lawsuit is to force the State to accomplish an Environmental Assessment (EA) for the improvements made to Kahului Harbor to accommodate the Superferry.  So it is not the “Hawaii Superferry EIS,” at least directly, and I’ve been guilty of the mislabeling.  Maybe under HRS ch. 343 that is a distinction without much of a difference, but at least let’s get the terms right.  I have posted the briefs of the parties here, where the legal claims and arguments are detailed.
  • There is little chance the circuit court will enjoin Superferry from returning people and their cars to their points of origin, even if

…
Continue Reading ▪ “Hawaii Superferry EIS” — Or “Kahului Harbor EA”?

Charley Foster over at Planet Kauai posts a summary of yesterday’s HAWSCT oral arguments in the Hawaii Superferry EIS case.  He posts analysis as well as some thoughtful questions on “what next?” 

The Supreme Court briefs of the parties are posted here.  Planet Kauai has also posted a succinct summary of the briefs and the legal arguments.Continue Reading ▪ Analysis of Arguments in Hawaii Superferry EIS Case