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Today, the Hawaii Supreme Court agreed to review Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008), in which the Intermediate Court of Appeals held that unless the project changes, a supplemental EIS is not required under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.

Alink to the ICA’s decision and the opinion of the dissenting judge isposted here. The briefs filed in the ICA are posted here.

The cert application, the brief in opposition, and the amici briefs on the application are here:

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Continue Reading HAWSCT To Review Turtle Bay/Kuilima EIS Case: Is A Change In “Context,” But Not The Project, Enough To Trigger Supplemental EIS?

The County of Maui has filed its Answering Brief in Leone v. County of Maui, No. 29696, an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the property owners’ Opening Brief (here).

Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision isavailable here.

The County’s brief argues the takings claims are not ripe for review because they “have not alleged nor can they demonstrate they have attempted to obtain…

Continue Reading Government Brief: Landowner Must Seek To Change Land Use Designations To Ripen Federal Takings Claim

In United States v. Milner, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors Act of 1899 because their land has eroded and their “shore defense structures” (rip-rap and bulkheads) now intersect with the boundary between public tidelands and their private property.

The case involves tidelands held in trust by the federal government for the Lummi Nation, pursuant to treaty and President Grant’s executive order. Upland owners erected and maintained structures on the tidelands to blunt the force of the waves, initially under a lease from the Lummi Nation which expired in 1988. The public-private boundary is the mean high water (MHW) mark, and over the years, the shoreline eroded and as of 2002, many of the structures were seaward of the…

Continue Reading Ninth Circuit: Let It Erode – Littoral Owners Have No Right To Install Shore Defense Structures On Their Land

The property owner has filed a brief responding to the amici brief supporting the application for writ of certiorari which urges the Hawaii Supreme Court to review the Intermediate Court of Appeals’ decision in Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008). In that case, the ICA held that unless a project changes, a supplemental EIS under Haw. Rev. Stat. ch. 343 is notrequired, even if the circumstances do.

The application and the amici brief urge the Hawaii Supreme Court toadopt a rule requiring a supplemental EIS even when a project does notchange if the “setting,” “circumstances,” or “context” can be allegedto have changed by a single plaintiff who meets the minimal requirements for environmental standing.The amici brief emphasizes the purpose of chapter 343, arguing the ICAmajority opinion was a “cramped” reading of the law and…

Continue Reading Response To Amicus Briefs In Kuilima/Turtle Bay HAWSCT Cert Application

In “Supreme Court’s Regulatory Takings Case Draws Widespread Interest,” the New York Times reports about yesterday’s filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The Supreme Court would likely resist such overt involvement intakings disputes, according to Jay Austin, senior attorney with theEnvironmental Law Institute.

“The only thing that petitionershave to cite to even suggest any precedent is a concurring opinion byformer Justice Potter Stewart in another beach case 40 years ago,”Austin said.

“Well, he’s the justice who famously said aboutobscenity that ‘I’ll know it when I see it.'” This case would put thejustices in the same position, he said, adding: “Just like they had toscreen films in the basement of the Supreme Court to see whether theywere obscene, they’d have to wade into all of…

Continue Reading NY Times On Gov’t Amici In Florida Beach Judicial Takings Case

Several amicus briefs have been filed supporting the government’s position in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The government’s merits briefs are posted here.

We filed an amicus brief supporting the property owners, which is available here. The property owners’ merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here. All briefs and more about the case on…

Continue Reading Amicus Briefs Supporting The Gov’t In Florida BeachTakings Case (aka Judicial Takings Case)

WavesOn Tuesday, November 10, 2009, at 9:00 a.m., the Hawaii Intermediate Court of Appeals will hear oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175. The arguments will take place in the Supreme Court courtroom at Aliiolani Hale.

The ICA panel will consist of Judges Nakamura, Watanabe and Foley.

The issue in thatcase is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State gets it every time.  

The trial court held that Act 73…

Continue Reading Upcoming Hawaii Appellate Court Oral Arguments In Beach Takings Case

Here are the respondents’ merits briefs in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief supporting the…

Continue Reading Government Merits Briefs In Florida Beach Takings Case aka The Judicial Takings Case

Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the…

Continue Reading Amicus Brief Supporting Gov’t In Beachfront Takings Case: Statute Didn’t Eliminate Common Law Rights, It Enhanced Them

Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Our brief argues Williamson County only requires a “final decision” by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes…

Continue Reading New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?