Land use law

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Today my Damon Key colleagues Mark Murakami, Christi-Anne Kudo Chock, and I filed for the Ocean Tourism Coalition a brief amicus curiae (88kb pdf) in the US Supreme Court supporting the petition for writ of certiorari filed in UFO Chuting of Hawaii, Inc. v. Smith, No. 07-1427 (petition for cert. filed May 12, 2008). 

The petition seeks review of the Ninth Circuit’s decision in UFO Chuting of Hawaii, Inc. v Smith, 508 F.3d 1189 (9th Cir. 2007), a case I blogged about here.  In UFO Chuting, the Ninth Circuit held:

We hold that UFO’s right to operate vesselsunder its federal maritime coasting licenses does not preempt Hawaiilaw prohibiting parasailing off the coast of Maui during limitedportions of the year to protect mating humpback whales.

Read the entire opinion here.  The case is a challenge to the State of Hawaii’s regulations restricting parasailing in waters…

Continue Reading Amicus Brief: A State May Not Ban Navigation For Five Months Without Interfering With Federal Navigation Rights

A little shameless self-promotion, as well as well-deserved recognition for my fellow Damon Key law bloggers Mark Murakami, Robert Harris and Tred Eyerly:  Ryan Ozawa has posted a summary of our firm’s adventures in law blogging on his Hawaii Blog in the post “Hawaii Firm Spotlights Legal Blogs” —

Firm director Thomas is one of Hawaii’s first law bloggers, and writes at inversecondemnation.com on land use law, eminent domain, and property rights. Fellow director Murakami writes about maritime and ocean law at hawaiioceanlaw.com. And associates Harris and Eyerly blog at insurancelawhawaii.com about… well, you know.

In its quarterly newsletter Legal Alert, the firm explainedthat a law blog is where “an attorney posts articles about his or herarea of expertise and interest — these articles may provide in-depthsummaries and analysis of recent cases or legislation, or may containpractical insight and commentary.”

. . .

Noting…

Continue Reading Hawaii Blog: Hawaii Firm Spotlights Legal Blogs

Today’s editorial in the Honolulu Star Bulletin is about the “ceded lands” case:

Hawaii’s Supreme Court ruled in January that a 1993 joint resolutionby Congress apologizing for the overthrow of the monarchy a centuryearlier requires that ceded lands be “preserved” until “a properfoundation for reconciliation between the United States and the nativeHawaiian people” is achieved.

The Apology Resolution does not exactly say that, but that was the state high court’s interpretation.

Read the complete editorial here.  More on the case, including links to all briefs in the case (so far) here.Continue Reading Honolulu Paper on Ceded Lands Case: “Hawaii Supreme Court ruling tampers with federalism”

Today’s Honolulu Advertiser posts a story, “Bennett receives support on ceded lands,” about the amicus brief of 29 states supporting Hawaii’s request for US Supreme Court review of the “ceded lands” decision, Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  More on the case, including links to all briefs in the case (so far) here.

Also on the same topic, Advertiser columnist Jerry Burris writes “Nothing is simple in land case,” which starts off:

Pity the legal eagles working for the state of Hawai’i these days.

On one side, they defend Gov. Linda Lingle’s position that Hawaiians are owed a fair settlement for the use of ceded lands, those 1.2 million to 1.6 million acres of former crown and government lands ceded in trust to the state in 1959.

On the other…

Continue Reading More on Ceded Lands Cert Petition and Amicus Briefs

Today’s Honolulu Star-Bulletin reports “29 other state oppose ruling on ceded lands,” about the amicus brief filed by the State of Washington and 28 other states urging the US Supreme Court to review the decision of the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, theHawaii Supreme Court, relying on Congress’ “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.

More about the case here (including links to the cert petition and other amicus briefs).Continue Reading More on Amicus Brief of 29 States in Ceded Lands Case

The Institute for Justice, the attorneys who represented Susette Kelo in Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the US Supreme Court held that economic development takings were not per se invalid, has filed a brief amicus curiae supporting the request for review in Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008), the Second Circuit decision I blogged about here.  The brief asserts:

In affirming the dismissal of Petitioners’ complaint, the Second Circuit held that taking property from A just to transfer it to B is constitutional — as long as the government refuses to admit what it is doing.

Brief at 2.  More on the issues in the case here.  The petition and other briefs are posted here.

Update: here is a story from the New York Sun about the brief (hat tip Continue Reading Amicus Brief in Goldstein v. Pataki Eminent Domain Pretext Case

The New Mexico Commissioner of Public Lands has filed a brief amicus curiae urging the US Supreme Court to review the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008).  In that case, the State seeks U.S.Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.

The Commissioner is the officer charged with authority to control the lands granted in trust to New Mexico when it joined the Union.  The brief asserts:

The decision of the Hawaii Supreme Court imposes an unprecedented restriction…

Continue Reading Commissioner of Public Lands Supports Cert Petition in Ceded Lands Case

Keep an eye out on June 19, 2008: that’s the date the US Supreme Court will consider whether to grant review of the Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision I blogged about here.  The issue in that case, as posed by the petitioner is:

Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the fight to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

Clark County, Nevada imposes a height restriction on structures near McCarran Airport in Las Vegas, While the Ninth Circuit held there was no regulatory…

Continue Reading Cert Petition Asks: Is There A Federal Avigational Servitude?

The State of Washington and 28 other states and commonwealth have filed an amicus brief in support of the State of Hawaii’s petition for a writ of certiorari in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008).  In that case, the State seeks U.S. Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).  In that decision, the Hawaii Supreme Court, relying on the “Apology Resolution,” enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reached with Native Hawaiians about the status of that land.

The brief of the twenty-nine states asserts:

The Supreme Court of Hawaii misconstrued the 1993Apology Resolution…. Notwithstanding express language showing that…

Continue Reading Another Amicus Brief Supporting Cert in Ceded Lands 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