Water rights | Public trust

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Check out the interview with Nalo Farms owner (and Hawaii Farm Bureau Federation president) Dean Okimoto in this month’s Hawaii Business. 

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The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

Disclosure: I represent the Hawaii Farm Bureau Federation.Continue Reading Hawaii Farmers And Ranchers: We Don’t Get No Respect

The U.S. Court of Appeals has denied a petition for rehearing and rehearing en banc in Casitas Municipal Water District v. United States,No. 2007-5153 (Sep. 25, 2008), a decision we noted here.  In September 2008, a panel held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout.  The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback.  The character of the government action was a physical diversionfor public use — the protection of an endangered species.” Slip op. at30.

The per curiam order denying rehearing is available here.  Three Federal Circuit judges dissented, arguing that no physical taking occurred because the federal government did not appropriate water from…

Continue Reading Federal Circuit Denies En Banc Review In Casitas

To those who attended Thursday’s and Friday’s conference, thank you.  Here are the cases and other materials I mentioned in my portion:

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.
  • Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appealnow pending in the Intermediate Court of Appeals.  The issue in thatcase is whether the state or littoral landowners are entitled toownership of accreted land. In “Act 73,” the legislature declared thatshoreline land naturally accreted belongs to the State of Hawaii and ispublic 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 wins every time.  We filed an amicus brief in the appeal, acopy of which is available here.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006). Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

Continue Reading Materials From Hawaii Land Use Law Conference

Worth reading: “In an Age-Old Quest for Balance, an Uncertain Shift” from the New York Times, a story about the land use “Battle of Molokai Ranch” (as the story puts it). If you want to begin to understand the land use game in Hawaii, take a couple of minutes and read this article. [Disclosure: my firm represents Molokai Ranch — later today, I will post the latest Hawaii Supreme Court filings in the most recent case. Update: the briefs are posted here.]Continue Reading NY Times on Land and Power on Molokai

In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family’s history to the post-contact “plantation days,” and today, even environmental groups proclaim they support farmers and ranchers and want to “keep the country country.”  Who among us of a certain age didn’t work in the cannery or the fields during summer break, or doesn’t miss Arakawa’s? The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

But often the theory of agriculture runs headlong into the reality. For example, agricultural uses may be prohibited on ag land, an interisland ferry by which farmers can transport their goods to market is shut down by the courts due to environmental worries, and most…

Continue Reading Hawaii Agriculture at Risk: Water Law and Land Use

To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

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Continue Reading Links From UH Historic Preservation Workshop

A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that the “public trust” is enforceable by the public against the government, and that wildlife is subject to the trust.

The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine.  The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action.  The court of appeals agreed, holding (1) birds and other wildlife are part of the “public trust,” (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.  

The court held…

Continue Reading Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach

Kauaisprings2 Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007.  The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition for a writ of administrative mandate or a petition for awrit of mandamus).

As reported in today’s Garden Island:

In a legal victory that was described by its attorney as a “total home run,” the Kaua‘i Springs bottled water company was granted three permits by 5th Circuit Judge Kathleen Watanabe yesterday in a strong rebuke of obstacles put up by the Kaua‘i County Planning Commission.

Kaua‘i Springs owner Jim Satterfield, who attended the proceeding with some 10 family members, said that he was almost “moved to tears” by the decision and categorized it as

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Continue Reading Victory in Kauai Springs Zoning Permit Appeal