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April 30, 2008

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The State’s 4/29/08 petition in OHA v. HCDC commendably gives three excellent reasons for the U.S. Supreme Court to grant cert.

“First, the practical impact of this [the Hawaii Supreme Ct] decision is enormous: it bars the State from prudently managing, for the benefit of all citizens of Hawaii, more than 1.2 million acres of State-owned land-“

Second, the decision raises serious federalism concerns.

Third, only the U.S. Supreme Court can correct the problem.

As Robert Thomas says, The petition notes, but does not focus on, a key point -- the ceded lands are supposed to be held in trust by the State "for the benefit of all citizens of Hawaii."

It is the failure of the State to focus on that key point that is missing. The state posits the question to the high Court as an issue of federal statutory interpretation. That would prevent a lasting solution and merely invite a new Congress and a new administration to enact a new apology and a more specific direction to the State not to sell, exchange or transfer its ceded lands trust lands until the supposed claims of Native Hawaiians to those lands have been satisfied.

I view this as a timely opportunity, on behalf of all the people of Hawaii, to ask the U.S. Supreme Court to provide a lasting solution before Hawaii self-destructs. This can be accomplished if the Supreme Court answers the right questions:

1. Whether Congress has the power to require or permit the State of Hawaii, as Trustee of the Ceded Lands Trust (also sometimes referred to as the §5(f) trust and the “Public Land Trust”), to discriminate between its citizens on the basis of race.

2. Whether Congress has the power to re-write history?

3. Whether Congress has the power to create a creditor and a debtor race.

These questions could be asked in an amicus brief, but would be more likely to be addressed, if non-ethnic Hawaiian citizens move to intervene in the Supreme Court because the State AG failed to fulfill his duty as parens patriae to ask these questions on behalf of all the people of Hawaii.

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  • devoted to recent developments and commentary on regulatory takings, eminent domain, inverse condemnation, property rights, and Hawaii land use law

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  • All upcoming and past seminars, conferences, and events here

    October 20, 2010


    As a follow up to the live panel discussion of the Supreme Court's "judicial takings" case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Envt'l Protection, the ABA will be presenting a teleconference on the case.

    I will again be moderating a panel with experts Professor John Echeverria (Vermont Law School), Jim Burling (Pacific Legal Foundation), Richard Frank (U.C. Davis Law School), and Dan Stengle (one of the attorneys who argued the case).

    More details to be posted as they become available.

    August 6, 2010


    One of the featured CLE sessions at the 2010 American Bar Association annual meeting in San Francisco was the Section of State and Local Government Law's session on the beach renourishment case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Envt'l Protection, a case involving "judicial takings" and ownership of beachfront land. The Section of Real Property, Trusts, and Estate Law co-sponsored the session.

    I moderated a panel discussing the case and its implications. Also on the panel were Professor John Echeverria (Vermont Law School), Jim Burling (Pacific Legal Foundation), Richard Frank (U.C. Davis Law School), and Dan Stengle (one of the attorneys who argued the case).

    May 6, 2010


    I presented a session on Are Courts Waking Up To Property Rights? at the Western Manufactured Housing Communities Association's Spring Seminar.

    April 30, 2010


    I moderated a presentation of the recently published book Takings International by Professor Rachelle Alterman, the Chair in Architecture/Town Planning at Technion Israel Institute of Technology.

    In addition to Professor Alterman, the panel included Professor Russell Brown (University of Alberta) and Professor Bryan Schwartz (University of Manitoba) who gave details and criticisms of Canada's approach, Professor David Callies (University of Hawaii) discussing the Asia and Pacific approaches, and Professor Tom Roberts (Wake Forest University) comparing our homegrown system.

    In a separate program on Land Use Hot Topics, I presented a paper Recent Developments in Challenging the Right to Take in Eminent Domain.

    These sessions were part of the ABA State and Local Government Law Section's Spring Meeting in Miami.

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