Environmental law

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Ninth Circuit holds in San Francisco Baykeeper v. Cargill Salt Division (Nos. 04-17554, 05-15-51, Mar. 8, 2007):

We conclude that the district court improperly expanded the regulatory definition of “waters of the United States” when it held that bodies of water that are adjacent to navigable waters are subject to the CWA [federal Clean Water Act] by reason of that adjacency.  Our conclusion is based on the CWA, the regulations promulagated by the agencies responsible for administering it, and the decisions of the Supreme Court addressing the reach of the Act and its regulations.

More on the CWA here.

Continue Reading ▪ 9th Circuit Limits Clean Water Act Jurisdiction

We all know that in Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held:

Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.

The court also noted that “western concepts” of property include a certain bundle of rights:

The western doctrine of “property” has traditionally implied certain rights. Among these are the right to the use of the property, the right to exclude others[,] and the right to transfer the property with the consent of the “owner”.

In 2000, the Hawaii Legislature amended the state’s environmental assessment/impact statement law, Haw. Rev. Stat. ch. 343 to require examination of cultural practices as well as environmental policies, economic welfare, and social welfare:

“Significant effect” means the sum of effects on the quality…

Continue Reading ▪ Are Constitutional Property Rights “Cultural Practices” That Should be Considered?

As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

If you think I missed any key cases or events, please email me.

    
Continue Reading ▪ 2006 Land Use in Review

I’ve posted discussion materials for the upcoming HSBA Natural Resources Section talk on the post-Rapanos landscape.  All documents are in pdf format.  Caution: a couple of files are large, and may take a while to download.

If you have any questions you want discussed at the session, please email me.

Continue Reading ▪ HSBA Natural Resources Section Rapanos Discussion Materials

The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes.  In other words, land under the ocean is a public resource, and incapable of private ownership.  This doctrine has historical roots in American and English common law. 

In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property.  While there is some debate about whether the public trust affects ownership of property subject to the trust…

Continue Reading ▪ 2006 Land Use in Review: Who Protects the Public Trust?

Rapanos v. United States, 547 U.S. ___ (Jun 19, 2006) was this year’s big environmental case from the U.S. Supreme Court, yet it did little to resolve the question over the geographic scope of “navigable waters” as used in the Clean Water Act.  The CWA requires a property owner seek a permit from the Army Corps of Engineers prior to any activity that may involve “navigable waters of the United States.”  The facts of the case are set out here.

The Court split 4-4-1, holding to overturn the decision of the Corps to require a Michigan landowner to seek a permit, but could not agree on a rationale.  The plurality decision left most commentators scratching their heads, unsure of what the rule of law was in the wake of the decision, and how to apply a ruling on which there was no majority opinion.  As in last…

Continue Reading ▪ 2006 Land Use in Review: Clean Water Act Jurisdiction

When is the “earliest practical time” to prepare an environmental assessment under Hawaii’s environmental statutes? 

In Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), the court determined if and when an environmental assessment is required during the boundary amendment process.

The property owner asked the State Land Use Commission to amend the land use classification from “agricultural” to “urban” to permit it to develop the “Koa Ridge” project in central Oahu.  This procedure, known as a “boundary amendment,” is required by Hawaii’s top-down system of land use, under which the State classifies all land into one of four categories: agricultural, conservation, rural, or urban.  Only then are the counties permitted to separately zone the land classified as urban.  The “boundary amendment” process, despite its unusual moniker, is similar to a rezoning. 

The Sierra Club and others intervened in the petition process, arguing that before the LUC was permitted to grant the boundary amendment, the agency must have completed an Environmental Assessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343 to determine whether a full-blown Environmental Impact Statement was required.  Section 343-5 of HEPA requires an agency to undertake an EA if an applicant proposes the “use of state lands.” 

The intervenors claimed that the Koa Ridge project would do so because it contemplated construction of a sewage and water lines which would require tunneling under state-owned land.  The landowner agreed that an EA was required, but argued it could be accomplished later because section 343-5 requires only that the agency prepare the EA “at the earliest practical time.”  The landowner asserted it was too early in the process to accurately set out the possible environmental impacts since the project at the boundary amendment stage was preliminary and conceptual, and the end product might be different. 

The court disagreed, holding that because environmental information is important, such information must be provided sooner rather than later, since a later determination may make the final decision fait accompli because the agency may be less inclined to disapprove a request further down the path after more time and money are spent:

We agree with the reasoning of Citizens [for Prot. of N. Kohala Coastline v. County of Hawaii, 91 Haw. 94, 979 P.2d 1120 (1999)] that early environmental assessment comports with the purpose of HEPA to alert decision-makers early in the development process because, “[a]fter major investment of both time and money, it is likely that more environmental harm will be tolerated.”

The court did not address what would happen if, as the landowner predicted, the scope of the project was altered in the future, either on the landowner’s initiative, or in response to a requirement from the LUC, which has the discretion to impose conditions on boundary amendments.  Under the court’s reasoning — environmental information is “important,” and care must be taken to insure that the agency’s decision to approve is not a foregone conclusion — it is not difficult to imagine that yet another EA could be required.   

    
Continue Reading ▪ 2006 Land Use in Review: Environmental Assessments, Early and Probably Often

Hawaii property owners, especially those near the ocean or a stream, should pay special attention to the U.S. Supreme Court’s latest decision interpreting the federal Clean Water Act.

The Act is designed to keep pollution out of “navigable waters,” but what does that term mean? The answer is not as simple as it may appear.

As strange as it sounds, “navigable waters” includes much more than waters that are actually navigable. The Army Corps of Engineers, the agency tasked with enforcement, defines the term very expansively to include drainage ditches, isolated marshes, patches of desert, and anything adjacent to them. If there might be a “hydrological connection” between your land and actually navigable water, these all-embracing regulations require you to obtain a permit before you do anything that might impact navigable waters even miles away.

An example of how this regulatory power was abused is the case of John Rapanos, a Michigan property owner whose appeal was decided by the U.S. Supreme Court in July. The federal government is pursuing Mr. Rapanos because it claims he needed a Clean Water Act permit before he moved sand from one side of his cornfield to the other. The government claimed his cornfield contained “wetlands,” which are “navigable waters” because they have a hydrological connection to a river twenty miles away.

Mr. Rapanos’ legal odyssey was only just beginning. When he refused to obtain the permit, the government convicted him of a federal crime, sought to throw him in federal prison for 10 years, and fined him $185,000. As if that was not enough, the government also sought civil fines of $10 million, mitigation fees, and forfeiture of half of his land.

Finally, after twelve years of trials and appeals, his case reached the Supreme Court, which ruled that the government overstepped its authority. The Court struck down the regulations, but could not agree why they were unlawful.

Four Justices said that in order to subject isolated “wetlands” to Clean Water Act regulations, the government had to show the nearby water is relatively permanent (such as the ocean or a stream), and there is a continuous surface connection between the property and that water.  Four dissenting Justices said that the regulations were perfectly acceptable as they were, and would have upheld the penalties against Mr. Rapanos.  The remaining Justice, Anthony Kennedy, said that the determination of whether property contained federal wetlands should be decided case-by-case to determine whether there was a “significant nexus” to actually navigable waters.

In the end, the Court could not agree on anything but the result: the Corps had gone too far, and its regulations were invalid. Unfortunately, the 4-4-1 split and resulting lack of clear direction from the Court has left farmers and ranchers in just as much uncertainty as they were before the decision. 

Even a careful property owner can only speculate whether a seemingly isolated wet patch of land, ditch, or drain – however remote and insignificant it may appear – may be somehow connected to traditionally navigable waters. Property owners act at their peril, because even innocuous actions may result in a violation.

Hawaii owners may be especially at risk, because no land in Hawaii is more than a few miles from the ocean, and most farms and ranches are much, much closer.  Nearly any seemingly isolated drain, ditch, or moist soil may later be shown to have an invisible hydrological connection to the ocean.  Does this mean you need a federal Clean Water Act permit before you risk undertaking routine tasks on your own property? Under the inconclusive Rapanos decision, your guess is at least as good as the Supreme Court’s.

The Corps has been urged to scale back its ambitions and revise its regulations to impose more reasonable rules. Historically, however, the Corps has resisted change, even when mandated by the Supreme Court.  Revised regulations, even if eventually enacted, are likely years away.  In the interim, it is up to the lower courts to try and apply the fractured Rapanos decision, leaving property owners to guess whether their activities may put them at risk.

If five Supreme Court judges cannot agree on a definition of “navigable waters,” it hardly seems fair that property owners are now tasked with determining whether their activities might require a Clean Water Act permit, chancing imprisonment and fine if they turn out to be wrong.

     Continue Reading ▪ Muddying the Clean Water Act

A panel of the U.S. Court of Appeals for the Ninth Circuit today ruled 2-1 that the U.S. Army must complete a more comprehensive Environmental Impact Statement (EIS) before “planning its programs to modernize and streamline its forces, while simultaneously maintaining readiness.”

In Ilioulaokalani Coalition v. Rumsfeld, (Oct. 5, 2006), the two judge majority wrote:

[w]hile the metamorphosis of the Army and the strategic planning accompanying this transformation is the business of the Army, not the courts, the Army’s compliance with NEPA does involve us.

The case involves the transformation of the 25th Infantry Division’s 2d Brigade to a Stryker unit.  Hawaii environmental groups challenged the Army’s environmental reviews as insufficient.  While the Army accomplished environmental reviews, the Ninth Circuit held that these reviews did not consider “all reasonable alternatives to transform the 2d Brigade in Hawaii . . . most notably the potential for transforming the 2d Brigade outside of Hawaii.”  The majority said the Army failed to answer the foremost question, “why Hawaii?.”

The dissenting judge stated:

In the name of environmental “concerns,” [footnote omitted] the majority would require the Army to consider what it has already reasonably rejected: whether it should consider moving Army units around the country for the new training — regardless it would cause delay in modernizing, lack of combat-readiness and entail prohibitive costs — because of possible environmental impacts training “in place” would cause.

The court remanded the case to the District Court, and required the preparation of a supplemental EIS, which could take two years.

        Continue Reading ▪ 9th Circuit: Army Needs Better Environmental Review