Water rights | Public trust

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On Friday, February 18, 2011 from noon to 1:00 p.m., my Damon Key colleague Greg Kugle will be speaking to the Hawaii State Bar Association’s Real Property and Financial Services Section on Shoreline Issues. Greg chairs our firm’s real estate and construction law practice group, and has been representing property owners on shorelines issues across the State of Hawaii for many years.

The presentation is free for HSBA members and will take place at the HSBA Confrerence Room, 1100 Alakea Street, Suite 1000. HSBA members from the neighbor islands can call in to a toll-free conference line (contact us for the instructions). Continue Reading Greg Kugle To Speak To HSBA On Shoreline Issues (2/18/2011)

VTLREV_coverAs we noted here (when we posted our article), the latest issue of the Vermont Law Review deals with the U.S. Supreme Court’s “judicial takings” case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 130 S.Ct. 2592 (June 17, 2010). 

In eight essays, the authors of several of the many amicus briefs add their post-opinion thoughts. Authors include Ilya Shapiro (Cato Institute), Professor John D. Echeverria (Vermont Law), and Julia Wyman (Marine Affairs Institute). The groundwork is laid in the first article, by Professor L. Kevin Wroth:

If hard cases make bad law, bizarre cases may make no law at all. The recent Supreme Court decision, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection is a case in point. In the Essays that follow, the Vermont Law Review has brought together the reflections of seven lawyers, or teams of lawyers, for amici curiae…

Continue Reading Vermont Law Review: Essay Reflections From The Amicus Curiae In The Judicial Takings Case

Regulatingparadise For those of you who do not yet have your copy of University of Hawaii lawprof David L. Callies‘ recent book Regulating Paradise – Land Use Controls In Hawaii, here’s your chance to get it signed by the author himself.

This Saturday, January 29, 2011 from 2:00 to 3:00 p.m., Professor Callies will be selling and signing at the Barnes & Noble at Ala Moana Center.

As we wrote in our initial review of the book, it’s a must-have for every dirt lawyer’s bookshelf. It is the one essential book if you want to understand Hawaii land use law, so it also belongs on the shelf of every Hawaii landowner, government regulator, environmentalist, and politician. At $22, it is a real bargain. Continue Reading Book Signing: Regulating Paradise – Land Use Controls In Hawaii (2d ed. 2010)

To all of you who attended the first day of the Hawaii Land Use Conference today, thank you. As promised, here are the items I discussed during my two sessions:

  • United States v. Milner, 583 F.3d 1174 (9th Cir. 2009) – the case in which the Ninth Circuit affirmed a finding of common law trespass for the building of a wall on fast land, because the shoreline eventually eroded up to it. Both parties had “vested rights” to an ambulatory littoral boundary. The U.S. Supreme Court denied review, as noted here.

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Continue Reading Cases And Links From Today’s Hawaii Land Use Conference Sessions On Coastal Issues And Water Law

11.LULHI This Thursday (January 13, 2011) I’ll be leading two sessions at the fifth Hawaii Land Use Law conference at the Ala Moana Hotel in Honolulu. This conference takes place biannually, so this is your last chance until 2013 to get updated on the hottest topics, by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases). The conference continues on Friday. Download the brochure here for a complete agenda.

The planning chairs, U. Hawaii Law Professor David Callies (U. Hawaii Law) and Ben Kudo (Imanaka, Kudo and Fujimoto), have assembled a talented and interesting faculty. The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s …

Continue Reading There’s Still Time To Register And Attend The Fifth Hawaii Land Use Conference

11.LULHI On January 13 and 14, 2011, I’ll be leading two sessions in the fifth Hawaii Land Use Law conference. This one only comes around every two years, so this is your chance to get updated on the hottest topics by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases).

The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s Takings Jurisprudence.” That alone will be worth the admission price.

Also of note: the seminar includes 3.25 Hawaii MCPE ethics credits, so you can fulfill your 2011 requirements in one sitting (you can attend the ethics portion for only $195). Members of the HSBA…

Continue Reading January 13-14, 2011: Fifth Hawaii Land Use Conference

The Vermont Law Review has published an article authored by me and my Damon Key colleagues (and fellow law bloggers) Mark M. Murakami and Tred Eyerly. The article is an essay with our thoughts about the U.S. Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

That’s the “judicial takings” case involving accretion rights and Florida’s “renourished” beaches. Disclosure: we filed an amicus brief supporting the property owners in the case. We argue in the article that despite eight Justices concluding the Florida Supreme Court’s decision in the case was not a judicial taking, the doctrine remains viable. The article suggests a roadmap for how future cases can be analyzed.

Download the pdf here, or get it below.

Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. …

Continue Reading New Article – Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

We’ve been meaning to post links to these items for a while:

Continue Reading Monday Round Up

In CRV Enterprises, Inc. v. United States, No. 2009-5100 (Nov. 17, 2010), the U.S. Court of Appeals for the Federal Circuit concluded that the EPA’s installation of a “log boom” in the Old Mormon Slough in Stockton, California as part of the remediation of a Superfund site was not a physical taking of CRV’s riparian and littoral access rights:

Here, there has been no physical invasion of the plaintiffs’ land. The log boom is anchored to the bottom of the Slough. Plaintiffs do not contend that they own the bed of the Slough. Nor do the plaintiffs claim that they own the water itself. In fact, plaintiffs admit they do “not assert that [they] owned the [Slough], the waters within it, or the Slough’s bed.” Appellant’s Reply Br. 8. Riparian and littoral rights do not convey ownership to the water but only rights to use the water.

Continue Reading Federal Circuit: No Physical Taking, No Regulatory Taking

The week before last, the Hawaii State Bar Association’s Real Property and Financial Services Section held a session on recent developments in land use law of interest to local dirt lawyers.

We were not able to attend (we were teaching a seminar on water law), but our Damon Key colleagues Mark Murakami, Greg Kugle (who Chairs the Section), and Ken Kupchak were able to go, and reported that the following decisions were discussed and debated:

  • County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the Hawaii Supreme Court concluded that state zoning statutes are “environmental laws” as defined in the Hawaii Constitution, and therefore a private right of action exists. We suggested that

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Continue Reading Land Use And Takings Cases Discussed At The HSBA Real Property Session