Shoreline | CZMA

Subscribe to Shoreline | CZMA via RSS

AFBF-annual
On Monday, January 9, 2012, I’ll be speaking to my American Farm Bureau Federation colleagues, who are in town for the AFBF annual meeting.

The title of my presentation is “Agriculture and Property Rights: Why Hawaii Matters.” I’ll be talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. I’ll record it and post it here on Monday.

Check out the AFBF’s annual meeting blog here.Continue Reading Agriculture And Property Rights: Why Hawaii Matters

The old adage is that a waterway is “navigable” for purposes of federal law if it is deep enough to float a Supreme Court opinion. Seriously, though, the less cheeky test of navigability is whether a waterway is capable of being used in its natural state as an avenue of commerce, meaning whether it was actually navigable at the time of a state’s admission into the Union. Really, that’s the test.

But as the Supreme Court reminded more than 30 years ago, when applying this general test for navigability, you must keep in mind the purpose  

T

Wednesday’s oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011) started off on familiar territory with Justice Kennedy breaking the ice quickly, asking Petitioner’s counsel Paul D. Clement whether his point is “that there should be a Federal rule of — laches or estoppel, or are…

Continue Reading What Does It Mean To Be “Navigable?” – Supreme Court

palazzolo

From The Day comes the sad news that Anthony Palazzolo, the namesake of the U.S. Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), has died.

Anthony Palazzolo, whose fight to develop his property in Misquamicut made its way to the U.S. Supreme Court, died Nov. 3 at the age of 91.

Palazzolo, a former auto wrecker and lifelong resident of Westerly, sued the state of Rhode Island for 17 years before ending his fight in 2005.

The case pitted environmentalists and property-rights activists from across the country. Environmental officials said Palazzolo’s plan to fill and develop his wetlands would “strangle” Winnapaug Pond, since the marsh is a habitat for fish and shellfish, and filters and cleanses waters that end up in the pond.

Read the entire story here.

My PLF colleague Jim Burling argued the case on behalf of Mr. Palazzolo. Continue Reading Anthony Palazzolo (1918-2011)

Yosemite_conference Here are the links to the cases and other items discussed today at the session Regulatory Takings – Looking Back and Looking Forward at the Cal State Bar’s Environmental Law Section’s Environmental Law Conference at Yosemite.

These cases are also in your written materials.

…
Continue Reading Links From “Regulatory Takings: Looking Back And Looking Forward” (Cal. State Bar Yosemite Conference)

Climatechangemongraphpage

“There is strong consensus in the international scientific community that climate change is occurring and that greenhouse gas emissions from human activities contribute to climate change.”

So begins Climate Change and Regulatory Takings in Coastal Hawaii, a monograph by Douglas Codiga, Dennis Hwang, and Chris Delaunay, published by the University of Hawaii Sea Grant College Program’s Center for Island Climate Adaptation and Policy. 

We’re not entering into the debate about whether global warming/climate change is or isn’t happening. But the one certain thing is that every regulatory entity from the U.N. on down to your local neighborhood board believes it is real, and seems to want to do something about it. Thus, the question is how property owners may be affected by those actions, and what they can do in response. This report doesn’t really resolve anything, but it does establish the framework and makes some recommenations. From…

Continue Reading Climate Change And Regulatory Takings In Coastal Hawaii

12.WATHIWe’ve just finalized the agenda and faculty for the Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we’ve assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and disaster…

Continue Reading Mark Your Calendars: Hawaii Water Law Conference (Jan. 11, 2012)

Civil Beat‘s recent report on the mayor’s plan to demolish the Waikiki Natatorium War Memorial, a salt-water swimming pool erected to honor those who served in “the Great War,” not only brought back some childhood memories (I swam there as a kid) but reminded us of the cost of preservation. When the thing or property sought to be preserved  — or, to use the bumper-sticker vernacular, “saved” — is public property like the Natatorium, the discussion usually involves the cost of doing so balanced against the desire to keep it.

But when the property involved is private property, you usually hear very little about the burdens placed on the owner, or the cost to the public of preservation. Which brings us to the tile of this post, which was inspired by a recent column by Howard Dicus “What do you want to save in Honolulu that’s old?…

Continue Reading What Do You Want To Save In Honolulu (And How Much Will It Cost?)

As we predicted in a recent article, the Supreme Court’s latest takings decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010) has been “a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Adding to the growing list of scholary takes on the case — sorry, we could not resist the pun — is Georgetown lawprof J. Peter Byrne who has posted Stop the Stop the Beach Plurality!, a forthcoming article to be published by the Ecology Law Quarterly.

Comparing Stop the Beach Renourishment to Bush v. Gore, the article — the tone of which is worthy of a Scalia dissent and is entertaining reading even if you don’t buy his analysis — makes no effort to hide his disdain for the plurality opinion. Professor…

Continue Reading Article: “Plainly, the plurality’s textual argument is so much lipstick on a pig.” (Don’t Hold Back – Tell Us What You Really Think About Stop The Beach Renourishment)

Beginning at 9:00 a.m. Central Time today, the Texas Supreme Court heard oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. In March, the court agreed to rehear the case.

Launch the archived video feed in a separate window by clicking this link, then follow the live blog archive below, where we added our thoughts and background. Our Damon Key colleague Rebecca Copeland provided Texas background (she practiced in the Texas appeals courts before joining our firm, so knows what “writ ref’d n.r.e.” means).

Background on the case, including the briefs the the court’s original opinion, are posted here.

Continue Reading Live Blog of Texas Supreme Court Argument In Severance (Beach “Rolling Easement” Case)

On Tuesday, April 19, 2011 starting at 9:00 a.m. Central Time, the Texas Supreme Court will hear oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. Thus, the public does not gain an easement over private property upon sudden changes in the shoreline. In March, the court agreed to rehear the case. [Disclosure: my colleagues at Pacific Legal Foundation represent the property owner.]

St. Mary’s law school will be live streaming the arguments here.

Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn’t the veg line, but rather the upper reaches of the high wash of the waves, as evidenced by the…

Continue Reading Argument Preview: Texas Supreme Court To Hear Arguments In Severance – Private Beaches, “Rolling” Easements