Vested rights

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The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

The issue in the case 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 belongsto the State of Hawaii and is public property. More about thearguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.Continue Reading Beachfront Taking Case (HAWICA) Oral Argument Recording

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about “judicial takings” and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.Continue Reading Petitioner’s Reply Brief In SCOTUS Beachfront Takings Case

The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note:

  • Tuesday, November 10, 2009, 9:00 a.m. – Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue 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. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners.
  • Thursday, December 17, 2009, 9:00 a.m. – Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (HAWSCT). The Supreme Court is reviewing the ICA’s conclusion that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ

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Continue Reading Upcoming Oral Arguments Of Interest

In an order issued yesterday, the U.S. Supreme Court granted the SG’s motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government’s amicus brief is available here.

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 in the case…

Continue Reading Solicitor General To Get Face Time In Judicial Takings Case

On Thursday, December 17, 2009 at 9:00 a.m., the Hawaii Supreme Court is scheduled to hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the IntermediateCourt of Appeals held that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ of certiorari asked the court to review this Question Presented:

Under HRS Chapter 343 an its enabling rules, is a supplemental environmental review required when there are significant changes to a project’s circumstances, such as increased environmental and community impacts, or are supplemental reviews limited solely to changes in project design?

The application for writ of certiorari and opposing and amici briefs in the case thus far are posted here. 

The ICA’s opinion is reported at 120 Haw.457, 209 P.3d 1271 (Haw. Ct. App. 2008), and…

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

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?

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

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