Here's the Answering Brief filed by a Maui Councilmember in the case in which Lanai residents and voters assert he forfeited the Lanai seat on the Maui County Council under section 3-3 of the Maui Charter since he is not a resident of Lanai.

Section 3-3 of the Charter provides that "If a council member...ceases to be a resident of the council member’s residency area during the council member’s term of office, or if a council member is adjudicated guilty of a felony, the council member shall immediately forfeit office and the seat shall thereupon become vacant."

The Maui Circuit Court dismissed the complaint, and the Lanai voters appealed.

Disclosure: we represent the Lanai voters; the Opening Brief we filed earlier is posted here.

More to follow as the appeal progresses. This was earlier transferred from the Intermediate Court of Appeals to the Supreme Court.

Note: on October 20, 2009, the Hawaii Supreme Court issued an opinion in a separate but related case, Dupree v. Hiraga, No 29464, the councilmember's appeal from a determination by the State Board of Registration hearing that he is a Lahaina resident and his attempt to register to vote as a Lanai resident was invalid. More about that decision here.

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 to ownership 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 supplemental EIS 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?

More about the case here. Note: the oral arguments apparently were rescheduled, as earlier notices listed the date as Thursday, November 19, 2009 at 11:00 a.m.

Mark your calendars for Wednesday, November 18, 2009, from 2:00 - 3:00 p.m. (Eastern Standard Time). That's when we will be having the next "recent developments" conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It's free, but open only to Section members. Members should receive an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member, see below.

These are informal calls to discuss recent developments, get feedback and advice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

• A preview of the December 2, 2009 Supreme Court arguments in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the "judicial takings" case that is generating a lot of interest.

• Aspen Creek Estates Ltd. v. Town of Brookaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009) - the New York courts permitted a taking for use as farmland.

• Noble v. Safe Harbor Family Preservation Trust, No. 80873 (Wash., Sep. 24, 2009) - condemnation of a "private way of necessity"

• City of Milwaukee Post No. 2874 VFW v. Redev. Authority of Milwaukee, No. 2006AP2866 (Wis., July 17, 2009) - the "undivided fee" rule.

Hope you can join us.  For a sample of what we discuss, see this post. If you are not a member of the SLG Section or Condemnation Law Committee and would like to participate in the call, drop me an email.

On October 16, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in  Rumber v. District of Columbia, No. 09-7035, the appeal challenging an attempt to take a shopping center by the District of Columbia and the National Capital Revitalization Corporation. We previewed the arguments and posted the briefs of the parties here.

The Blog of Legal Times reported on the arguments in D.C. Circuit Tries to Untangle Eminent Domain Battle, noting:

The D.C. Circuit judges—Chief Judge David Sentelle was sitting with Senior Judges Stephen Williams and A. Raymond Randolph—grappled with just how many plaintiffs are left in the suit. Sentelle, during oral argument, ordered both sides to submit supplemental briefs that address the status of the plaintiffs.

Read the entire article here.

Here are the latest blogs we've added to our list:

• California Eminent Domain Report - A fairly new, and very active blog from the Nossaman firm's Eminent Domain and Valuation Group.
  

• Section 1983 Blog - A fun blog about our second favorite cause of action.
  

• The California Constitution -  Following the California Supreme Court, and all things constitutional.
  

• California Appellate Report - Focuses on California state courts of appeals decisions and those from the Ninth Circuit. Always an entertaining and informative read.

• Real Estate, Land Use and Environmental Law Blog - Just like the title says; from the Shepard Mullin firm.
  

Remember the "ceded lands" case? The one where the U.S. Supreme Court held 9-0 that the U.S. had absolute fee simple title to the ceded lands, and that the Apology Resolution was hortatory fluff? See Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009). We were all over that case, which we summarized here on our resource page.

After it reversed the Hawaii Supreme Court's decision, SCOTUS remanded the case back to the Hawaii court "for further proceedings not inconsistent with this opinion." Today, the Hawaii Supreme Court dealt with the last remaining thread in the litigation, the claim of one of the plaintiffs who refused to settle. Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Oct. 27, 2009).

Since SCOTUS issued its opinion, all of the plaintiffs but one settled with the state. See slip op. at 2 n.2. The state challenged the standing of the holdout plaintiff to continue the fight, arguing that he asserted rights as a Hawaiian. The court held that the holdout plaintiff claimed standing both as a native Hawaiian, and as a member of the public. See Haw. Const. art. XII, §  4. See slip op. at 15. The court noted that the plaintiff was claiming specific rights as a Hawaiian, but that did not exclude him from claiming standing as a member of the public also. Id. at 17.

The court held the plaintiff met the "injury in fact" test for standing because he alleged he is a "Hawaiian member of the general public," and may "suffer cultural and religious injury if ceded lands are transferred from the trust in violation of the State's fiduciary duties." Id. at 20 (emphasis omitted). The court also noted the other two elements of the standing test were met (slip op. at 21 - 24).

However, the court concluded that while the holdout plaintiff has standing, his claims were not yet ripe. "[J]udicial review at this time would be premature and, additionally, would constitute a violation of the separation-of-powers doctrine," slip op. at 32, because the state legislature must first approve of any transfer of ceded lands, which it has not done here.

The court sent the case back down to the circuit court with instructions to enter a dismissal without prejudice. Slip op. at 33.

Charley Foster summarizes the opinion here.

Here are some recently-released opinions; none so earth-shattering that they merit their own post, but definitely worth reading:

• People ex rel. Dep't of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) - In an eminent domain case, the California Court of Appeals, Third District concludes that a claim for lost goodwill was not preempted by federal law (the Petroleum Marketing Practices Act).

• Town of Kearny v. Discount City of Old Bridge, Inc., No. A-6220-07T3 (N.J. Super. Oct. 23, 2009) - Analysis and summary here from the New Jersey Condemnation Law blog.

• River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08 C 950 (7th Cir., Oct. 27, 2009) - In a case involving a church's claims that a rezoning violated RLUIPA, the U.S. Court of Appeals for the Seventh Circuit affirmed the denial of church's motion for preliminary injunction because the "Church has only a slim chance of success on the merits," among other reasons.

Each summer, The Urban Lawyer (the ABA's Section of State and Local Government Law's peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among the benefits of section membership. The just-published Summer 2009 issue includes my article on recent developments in public use and pretext in eminent domain, which I have creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that's not descriptive enough, here's a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned for a public use or purpose can be challenged by a landowner, and what degree of deference is owed by the courts to the  government's assertion. This article summarizes recent developments in public use and pretext litigation.

The decisions the article covers include the most significant cases handed down between 2007 and early 2009, and include County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008); City of Stockton v. Marina Towers, L.L.C., 88 Cal. Rptr. 3d 909 (Cal. Ct. App. 2009); In re Condemnation by the Redev. Auth. of Lawrence County, 962 A.2d 1257 (Pa. Commw. Ct. 2008); Aspen Creek Estates, Ltd. v. Town of Brookhaven, 848 N.Y.S.2d 214 (N.Y. App. Div. 2007), aff'd, 2009 WL (N.Y. 2009); Middletown Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007); and Goldstein v. Pataki, 516 F.3d 50 (2d Cir.), cert. denied, 128  S. Ct. 2964 (2008).

The article is available in pdf format here. If you'd like a hard copy reprint, send me an email.

The Summer 2009 issue also includes articles about recent developments in land use law, exactions and impact fees, RLUIPA, and other topics. If you are a member of the SLG Section look for it in the mail soon.

More about Klumpp v. Borough of Avalon, the decision from New Jersey's Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation.

In Avalon stole land, appeal to New Jersey high court claims, the Atlantic City paper reports on the case:

A Moorestown couple is asking the state's highest court to consider whether the borough stole a beachfront parcel from them after the great northeaster of 1962.

Edward and Nancy Klumpp's Nantucket-style home on 75th Street was destroyed by the infamous storm. The couple looked into rebuilding the home over the years, and in 1997 applied for a coastal permit.

By then, the borough had built an extensive network of dunes along the ocean to protect people from future coastal storms.

The case has resonated among coastal towns across New Jersey. Avalon has fielded calls from a dozen other beach towns that also have vacant beachfront lots in private hands, Mayor Martin Pagliughi said.

Read the entire article here.

Earlier this week, the New Jersey Law Journal called the appellate court's decision "a bizarre condemnation." We posted the Klumpps' petition for review here.

Here are a couple of reports about yesterday's decision by the Hawaii Supreme Court in Dupree v. Hiraga, No. 29646 (Oct. 20, 2009):

• Kaho‘ohalahala not a Lanai resident (The Maui News)

• Activist is not a Lanai resident, court says (Honolulu Star-Bulletin)

The court held that in order to establish residency as a voter, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there.  Intent to return is not enough. The case concerned whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed. More about the opinion here.

[Disclosure: my Damon Key colleagues and I represent the Lanai voters who prevailed in the appeal.] 

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., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court's reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court's decision violated due process.

We filed an amicus brief in the case supporting the property owners, which is available here.

Oral arguments are scheduled for Wednesday, December 2, 2009. All briefs and more about the case on our resource page and in this report from the Destin Log (the hometown newpaper).

In an opinion issued today, the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there. Dupree v. Hiraga, No. 29646 (Oct. 20, 2009). Intent to return is not enough.

The case concerned whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.

[Disclosure: my Damon Key colleagues and I represent the Lanai voter who prevailed in the appeal.] 

The court held:

The Board concluded in COL No. 14 that Dupree established that Kaho'ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Lana'i. The Board did not clearly err in reaching that conclusion. The Board found, and there is substantial evidence in the record to establish, that Kaho'ohalahala did not own or work for a business on Lana'i, and did not own or rent a house or keep a car on the island. Hiraga and Kaho'ohalahala argue that those findings are immaterial or not dispositive. While they are certainly not dispositive, they are relevant because they support an inference that Kaho'ohalahala had not established the necessary physical presence on Lana'i.

The Board further found that Dupree had not seen Kaho'ohalahala at "the post office, either bank, the Lana'i store, the gas station or any restaurant on Lana'i." There was substantial evidence to support that conclusion as well. Once again, while none of those observations are dispositive, they are relevant. The record establishes that Lana'i is a small, close knit community where residents would likely see each other at such locations. Thus, the observations support the inference that Kaho'ohalahala had not established a sufficient physical presence on Lana'i.

Slip op. at 51-52 (footnotes omitted). More about the case, including the briefs of the parties here. The oral argument recording is available here.

Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a "Kafkaesque" decision by the Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation?  See Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

Well, we're not alone.  The New Jersey Law Journal today published an editorial entitled "A Bizarre Condemnation." It's not available on-line except for subscribers, but we will note some of the key passages:

Rarely is there an appellate decision so bizarre that it leaves seasoned lawyers and laypersons alike shaking their heads in disbelief. It is a basic premise of constitutional law that the government may not take property without due process and just compensation. Yet according to Klumpp v. Borough of Avalon, 2009 WL 2341554 (July 31, 2009), a New Jersey municipality can do just that.

. . . .

The court agreed that the Klumpps had fee simply or "record title" based on such evidence as tax bills, borough records and recorded title, but called this evidence "indicia of plaintiffs' bare legal title ... and nothing more." Rather, the court held, it is "equitable title" that is important and the borough has this because it had taken the property in 1962 by making it "essentially unavailable to [plaintiffs] for any purpose." Although the taking occurred, no compensation was due, apparently because it was accomplished by inverse condemnation -- the very finding that should have entitled the Klumpps to compensation.

In sum, the court made two fundamental legal errors. First, it held, with no facts to support it, that a taking had occurred in 1962, effectively ignoring clear evidence that the Klumpps continued to own the property, and it did so by inexplicable and improperly bestowing so-called "equitable title" on Avalon versus the Klumpps' "mere legal title." It misunderstood the situations in which the fiction of "equitable title" has been used to work an equitable result. Second, it misunderstood the concept of inverse condemnation, using it not as a remedy for property owners but as a sword by which the government can circumvent the Constitution and the Eminent Domain Act and usurp property without paying.

More about the case here, including the petition for review. Several amicus briefs have been filed, urging the New Jersey Supreme Court to review the decision:

• Brief Amicus Curiae of Builders League of South Jersey, Inc. In Support of Petitioners

• Brief of Proposed Amicus Curiae New Jersey Land Title Association in Support of Petition for Certification

Update: In this order, the Court declined to review the case.

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On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court's decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009).

The case is listed on SCOTUSblog's list of "petitions to watch."

The Questions Presented:

The Supreme Court of the State of Alaska upheld the validity of a state statute that took a percentage of Reust's recovery in a civil action for public use, aligning the Alaska Supreme Court with the Ninth Circuit and six State Supreme Courts that have held such statutes constitutional and furthering the split with two State Supreme Courts that have held such statutes violate the Takings Clause of the Fifth Amendment to the United States Constitution. The first question presented is:

1. Whether a state statute that allows a percentage of a civil judgment to be taken for public use violates the Takings Clause of the Fifth Amendment to the United States Constitution?

The Supreme Court of the State of Alaska upheld the taking of a percentage of Reust’s recovery even though the recovery was through a settlement and not a judgment as required by the State statute. The second question presented is:

2. Did the taking of a percentage of Reust's civil recovery violate the Due Process Clause of the Fourteenth Amendment?

SCOTUSblog also posts the petition and BIO:

• Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009)

• Petition

• Brief in opposition

• Reply

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 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. 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 is posted here. The briefs filed in the ICA are posted here.

Yesterday, the New York Court of Appeals heard oral arguments in the latest case involving the controversial Atlantic Yards project in Brooklyn. We blogged the arguments as we followed along on the live video feed (video archived here).

According to the court's web site, "[t]he Court normally decides cases within thirty to sixty days after the oral argument date," so we should be seeing the outcome relatively quickly.  

Here are selected reports on the arguments and the issues in the case:

• New York Times: High Court Hears Arguments in Atlantic Yards Case
  

• Atlantic Yards Report: At eminent domain oral argument, judges skeptical of both sides; court spends more time on process, low-rent housing issue than AY as sweetheart deal

• Associated Press: NYC owners: Arena land-taking is unconstitutional

• Reuters: NY top court begins key hearing on Brooklyn project
  

• New Jersey Eminent Domain Law blog: Atlantic Yards eminent domain oral argument at the New York Court of Appeals
  

• NY1: Atlantic Yards Case Goes Before Appeals Court (video report)

• Professor Gideon Kanner: Tomorrow - Big Day, or Same Old, Same Old?

• Kanner on the Courtesy Sandwich Shop case

• Wall Street Journal: Court Weighing Eminent Domain

• The Institute for Justice's report: Building Empires, Destroying Homes: Eminent Domain Abuse in New York
  

Missed the live blog and video of the oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Atlantic Yards development and Kelo-like claims of eminent domain abuse in an economic development taking? 

Well, you're in luck -- the court has archived the video.

Launch the live blog and start the video at the same time and you can follow along with Timothy Sandefur, Mark Murakami, and me as we provide commentary.

To launch the video in a separate window, go here.

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.

A link to the ICA's decision and the opinion of the dissenting judge is posted 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:

• Application for Writ of Certiorari

• Memorandum in Opposition (Kuilima Resort Company)

• City & County of Honolulu's response to cert application

• Motion for Leave to Appear and File a Brief as Amici Curiae (supporting the application) by Conservation Council for Hawaii, Surfrider Foundation, Hawaii's Thousand Friends, Life of the Land, Maui Tomorrow Foundation and Kahea

• Response to Amici Brief (Kuilima Resort Company)

There will not be further briefing unless the court requests it. The usual next step is the scheduling of oral arguments.

Joining in the commentary were Pacific Legal Foundation attorney and property rights scholar Timothy Sandefur, and my Damon Key colleague and eminent domain litigator Mark Murakami.

For a first hand report from the courtroom, check out Dean Patty Salkin's comment.

It appears that the New York Court of Appeals live streams oral arguments, so tomorrow, for the second day in a row, we'll go live with real-time blogging of an important and fascinating case (today we're blogging oral arguments in the Hawaii Supreme Court on a land use case).

Starting at 2 pm EDT on Wednesday October 14, we'll follow the arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking.

Go to this page to check if the viewer window works in your browser, and to sign up for an email reminder as the date approaches. Or, you can just come back here on Wednesday when we go live at about 1:45 p.m. Eastern time. The live window will be the top post on the blog that day.

The merits and amicus briefs in the appeal are posted here.

This post at the Volokh Conspiracy has a good summary of the issues in the case, and why they are important. Dean Patty Salkin's summary of the case is posted on the Law of the Land Blog here. The court's Public Information Office's summary of the case:

This proceeding challenges the use of eminent domain by the Empire State Development Corporation (ESDC) to take property on the site of the proposed Atlantic Yards project in downtown Brooklyn for development by the Forest City Ratner Companies. The centerpiece of the 22-acre project is construction of an arena for the New Jersey Nets basketball team, owned by Forest City Ratner principal Bruce Ratner. Plans for subsequent stages of the project include construction of 16 towers for office and retail space, more than 5,000 housing units, and community facilities offering health and child care; and creation of eight acres of open space for public use. The New York State Urban Development Corporation, doing business as the ESDC, approved the use of its power of condemnation in December 2006, after determining the project would serve the public purposes of eliminating blight and providing recreational and community facilities, mass transit and infrastructure improvements, affordable housing, job creation, and increased tax revenue.

Petitioners, who live or own businesses on the Atlantic Yards site, initially challenged the taking of their properties in federal court, contending that the primary benefits of the project would accrue to Ratner and that the public purposes cited by ESDC were pretexts for a private taking. The federal action was dismissed for failure to state a viable claim that the condemnations violated the Fifth Amendment (see Goldstein v Pataki, 488 F Supp2d 254 [EDNY 2007], affd 516 F3d 50 [2d Cir 2008]).

Petitioners then commenced this action in August 2008 contending, among other things, that the New York Constitution sets a more restrictive standard for condemnation and that the taking of their properties would violate its Public Use clause (article I, § 7), which states that "private property shall not be taken for public use without just compensation."

The Appellate Division, Second Department upheld ESDC's determination to condemn private property for Atlantic Yards, rejecting the claim that the Public Use clause must be read literally to allow condemnation only where the property "is to be held open for use by all members of the public." It said New York courts "recognized quite early on that some takings, which would benefit private enterprises such as railroad companies, would also inure to the benefit of the public and thus constitute 'public use.'" It said "the literal interpretation of the concept of public use which the petitioners urge us to apply was abandoned long before the United States Supreme Court concluded [in Kelo v City of New London (545 US 469 [2005])] that the use of eminent domain to carry out an economic development plan does not violate the Fifth Amendment to the United States Constitution.."

Petitioners argue, in part, that a narrow interpretation of "public use" is "compelled by the plain meaning of the term, the intent of the New York citizens who first enacted the provision in 1821, and by a raft of decisions from this Court during the 19th and early 20th centuries -- a time considerably closer to its enactment than more modern cases that have been infected by the U.S. Supreme Court's aggressive attempts to render meaningless the comparable provision in the Fifth Amendment." They also argue the ESDC failed "to weigh the public benefit that will be realized by the seizure against the benefit that will accrue to the recipient of [the] property," as required under Aspen Creek Estates, Ltd. v Town of Brookhaven (12 NY3d 735).

The mp3 recording of the argument is posted here.

More details on the case below the window.

The court is considering whether Haw. Rev. Stat. §  205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."

The case involves a "new century charter school" located in the County of Hawaii (Big Island) . The school sought to begin operations on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school's neighbors, the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6, which allows a county planning commission to permit certain "unusual and reasonable uses" within an agricultural or rural district, despite the land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school.

The Intermediate Court of Appeals reversed, and concluded that the plaintiffs could not institute a suit to privately enforce chapter 205. The ICA's summary disposition order is here.

Here are the cert application and the State's opposition, and two amicus briefs supporting the applicant:

• Application for writ of certiorari
  

• State of Hawaii's Opposition

• Amicus brief of Native Hawaiian Legal Corporation

• Amicus brief of Hawaii's Thousand Friends

The case relied upon by the ICA, Pono v. Molokai Ranch, Ltd., 119 Haw. 164, 194 P.3d 1126 (Haw. Ct. App. 2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008), was rejected for review after the plaintiff made many of the same arguments. We represented Molokai Ranch in that case, and filed this brief in opposition to the application for writ of certiorari, which explained why chapter 205 is a zoning law, and not a "law relating to environmental quality" and why a statute which allows fee-shifting in cases seeking injunctive relief for failure to obtain a permit was not a legislative recognition of a private right of action.

The County of Maui has filed its Answering 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 brief responds to the property owners' Opening Brief (here).

The trial court determined the plaintiffs' federal regulatory takings claim -- which they brought in state court, as required by Williamson County -- 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.

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 necessary changes in the use designation of their property." Brief at 26. 

More details on the case and the issues here.

Disclosure: we filed an amicus brief (available here) on behalf of the property owners. The 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.

More to follow when further briefs are filed.

Beginning at 2pm EST on Wednesday, October 14 (thanks, noLandGrab) the New York Court of Appeals will hear oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking. 

This post at the Volokh Conspiracy has a good summary of the issues in the case, and why they are important. The merits and amicus briefs in the appeal are posted here.

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 line. The federal government sued, and the case was joined by the Lummi Nation as beneficial owner. The district court held the property owners were trespassing, ordered them to remove any structures seaward of the MHW mark, and imposed a $1,500 fine for a Clean Water Act violation. Slip op. at 14467.

The Ninth Circuit first noted that federal common law and not Washington state law governs the trespass claim. The court rejected the property owners' "equal footing doctrine" claim that the tidelands are owned by the State of Washington, and not by the federal government. While the equal footing doctrine and its nuances are extremely interesting to us, we leave you to the court's summary on pages 14470 to 14474, rather than repeat it here. Bottom line is that the title to these tidelands did not pass from the U.S. to the state upon Washington's admission.

The next part of the opinion which begins on page 14475 is the really interesting bit, because many of the same issues are in play in the case from Florida regarding beachfront judicial takings now being considered by the U.S. Supreme Court. The Ninth Circuit held  "[u]nder the common law, the boundary between the tidelands and the uplands is ambulatory; that is, it changes when the water body shifts course or changes in volume." Slip op. at 14476. The court noted the balance between accretion and erosion, and that the littoral owner loses title (most often to the state) when land is accreted, but gains it when new land is accreted. Here's the interesting part:

Importantly, the upland owner’s right to accretions is a vested right and "rests in the law of nature." County of St. Clair [v. Lovingston], 90 U.S. [46] at 68 [(1874)]. It is justified in large part because the upland owner’s land is subject to erosion. As the Supreme Court stated in County of St. Clair,

The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentire commodum’ [‘he who enjoys the benefit ought also to bear the burdens’] lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if, a gradual gain, it is his.

Id. at 68-69.

Slip op. at 14476-77. [Sidebar: my Torts professor once semi-jokingly noted that "if it ain't Latin, it ain't the law" but thankfully we've mostly evolved past the need, inter alia, to sprinkle Latin phrases all over the place.]

The court held that because the right is vested, "both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line." Id. at 14477. Thus, the court concluded:

The Homeowners have the right to build on their property and to erect structures to defend against erosion and storm damage, but all property owners are subject to limitations in how they use their property. The Homeowners cannot use their land in a way that would harm the Lummi's interest in the neighboring tidelands. Given that the Lummi have a vested right in the ambulatory boundary to the tidelands they would gain if the boundary were allowed to ambulate, the Homeowners do not have the right to permanently fix the property boundary absent consent from the United States or the Lummi Nation. The Lummi similarly could not erect structures on the tidelands that would permanently fix the boundary and prevent accretion benefitting the Homeowners.

Id. at 14480-81. The court downplayed the impact of its decision:

We emphasize that this does not mean property owners cannot erect shore defense structures on their property or take other action to prevent erosion. Nor does it mean that the Homeowners must necessarily remove their structures, if they can reach an agreement with the Lummi Nation and the United States that allows the structures to remain. Rather, we hold only that the Homeowners have no defense to a trespass action because they are seeking to protect against erosion.

Once the shore has eroded so dramatically that the property owner’s shore defense structures fix the ambulatory boundary, the upland owner cannot expect to permanently maintain the boundary there without paying damages to the tideland owner or working out an agreement with the tideland owner.  Homeowners on Sandy Point previously had leased the tidelands from the Lummi, and there is no reason the Homeowners could not similarly seek to negotiate a new agreement now.

Slip op. at 14481 (footnote omitted). In footnote 11, the court asserted that in most areas, the states hold title to most tidelands, and that "[m]ost disputes that arise between the states and littoral property owners over tideland boundaries and the use of tidelands are ultimately a matter for state courts to adjudicate under state law." Id. That may be true, but this decision is based on federal common law, and a pronouncement by a federal appeals court on a common law issue, while not binding, is often very persuasive to state courts (especially those within the territory of the federal court) when considering the same issue.

The court also upheld the Rivers and Harbors Act claim against the property owners, holding they did not need to have any intent to place their structures into navigable waters of the United States. The court relied on United States v. Alameda Gateway, Ltd., 213 F.2d 1161 (9th Cir. 2000), a case holding that property owners can be liable for "creating" obstructions to navigation even when the Corps of Engineers re-drawing of regulatory boundaries (Harbor Lines) to include a pier in order to avoid paying compensation is the reason the offending structure is violating the Act.

Disclosure: my Damon Key partner Diane Hastert and I represented Alameda Gateway in that case and the companion litigation, Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999), in which the CFC held the federal government owed just compensation for the partial inverse condemnation of Alameda Gateway's piers which were deemed to violate the RHA.

Finally, the court reversed liability under the Clean Water Act because a property owner reconstructing their bulkhead did not involve a discharge into waters of the United States.

On Tuesday, October 13, starting at 10:00 am (Hawaii Standard Time), the Hawaii Supreme Court will hear oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here). We will be covering the arguments live here. 

Details of the argument schedule are posted on the Judiciary site here (the site notes the arguments will be held on "Thursday" October 13, but we've confirmed with the Clerk that's a typo, and the date is Tuesday, October 13).

The last time we live blogged Hawaii Supreme Court oral arguments was in the second "Superferry" appeal. We used the Cover it Live application which seemed to work well and does not require the viewer to install any extra software beyond a web browser, so we're using it again.

Go to this page to check if the viewer window works in your browser, and to sign up for an email reminder as the date approaches. Or, you can just come back here next Tuesday when we go live at about 9:45 a.m.Hawaii time. The live window will be the top post on the blog that day.

This case has not garnered the broad public interest of the Superferry litigation, but the case could be more important. The court is considering whether Haw. Rev. Stat. §  205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."

The case involves a "new century charter school" located in the County of Hawaii (Big Island) . The school sought to begin operations on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school's neighbors, the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6, which allows a county planning commission to permit certain "unusual and reasonable uses" within an agricultural or rural district, despite the land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school.

The Intermediate Court of Appeals reversed:

In Pono v. Molokai Ranch, Ltd., 119 Hawai‘i 164, 194 P.3d 1126 (App. 2008), cert. rejected, 2008 WL 5392320 (Hawai‘i 12/29/08), this court held that private citizens do not have a private right of action to enforce the provisions of HRS Chapter 205 and, therefore, lack standing to invoke a circuit court's jurisdiction to determine their claims to enforce Chapter 205. The enforcement of HRS Chapter 205 is precisely the relief sought by the Association and granted by the Circuit Court in this case.

. . . .

We conclude that the Association did not have a private right of action to enforce their Chapter 205 claims and, therefore, the Circuit Court lacked subject matter jurisdiction over the Association's claims. See Pono, 119 Hawai‘i at 180-90, 194 P.3d at 1142-52; see also Lanai Co., Inc. v. Land Use Comm'n, 105 Hawai‘i 296, 97 P.3d 372 (2004) (HRS § 205-12 authorizes the counties, not the LUC to enforce Chapter 205); accord Rees v. Carlisle 113 Hawai‘i 446, 153 P.3d 1131 (2007) (circuit court lacked jurisdiction because the subject ordinance did not create a private right of action).

The ICA's summary disposition order is here.

Here are the cert application and the State's opposition, and two amicus briefs supporting the applicant:

• Application for writ of certiorari
  

• State of Hawaii's Opposition

• Amicus brief of Native Hawaiian Legal Corporation

• Amicus brief of Hawaii's Thousand Friends

The case relied upon by the ICA, Pono v. Molokai Ranch, Ltd., 119 Haw. 164, 194 P.3d 1126 (Haw. Ct. App. 2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008), was rejected for review after the plaintiff made many of the same arguments. We represented Molokai Ranch in that case, and filed this brief in opposition to the application for writ of certiorari, which explained why chapter 205 is a zoning law, and not a "law relating to environmental quality" and why a statute which allows fee-shifting in cases seeking injunctive relief for failure to obtain a permit was not a legislative recognition of a private right of action.

The Judiciary web site summarizes the issues in the oral arguments:

Petitioner Ala Loop Community Association (Ala Loop) filed an application for writ of certiorari requesting that this court review the judgment of the Intermediate Court of Appeals (ICA). The ICA, citing Pono v. Molokai Ranch, Ltd., 119 Hawaiʻi 164, 194 P.3d 1126 (App. 2008), cert. rejected, 2008 WL 5392320 (Hawaiʻi Dec. 29, 2008), concluded that Ala Loop did not have a private right of action to enforce its Hawaiʻi Revised Statutes (HRS) chapter 205 claims against Respondent Waiʻola Waters of Life Charter School, and therefore, the Circuit Court of the Third Circuit lacked jurisdiction over those claims. Ala Loop contends that the ICA erred because, inter alia, it failed to consider Article XI, Section 9 of the Hawaiʻi State Constitution and HRS § 607-25 (Supp. 2002).