Three more amicus briefs have been filed in the U.S. Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239.
Our brief, filed earlier this week, is posted here.
On August 14, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239.
In that case, environmental groups challenged the use of MFA sonar, asserting that the Navy had not completed an environmental impact statement (EIS) to study the possible harms to marine mammals. MFA sonar is used to detect quiet diesel-electric submarines, which the Navy considers to be one of the top threats to surface ships. The Ninth Circuit agreed with the plaintiffs and enjoined the exercises, imposing restrictions on how the Navy trains with the sonar, even though the record in the case contained "no evidence that marine mammals have been harmed by the use of MFA sonar in the...training area." The Supreme Court agreed to review the case in June.
Our brief was filed on behalf of nine retired Admirals, including a former Chief of Naval Operations, former Commanders of the Pacific (Pearl Harbor) and Seventh (Asia-Pacific and Indian Ocean) Fleets, and Commanders of the Pacific Command. They have also commanded Navy battle groups, aircraft carriers, and surface ships. Also on the brief are the Navy League of the United States (and its Honolulu Council), and several other military support groups from California, Hawaii, and other western states.
The issue in the case is whether the Ninth Circuit properly granted an injunction under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, the law that requires federal agencies to consider the environmental impacts of their proposed actions and reasonable alternatives to those actions. NEPA is an informational statute, and requires that agencies gather and disseminate information, but does not dictate any particular outcome. The plaintiffs also asserted the Navy violated the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451.
After the district court enjoined the Navy's exercises because it had not completed an EIS under NEPA and the Ninth Circuit affirmed, the Council on Environmental Quality determined that "emergency circumstances" were presented and it exercised its authority under federal regulations to exempt the Navy from NEPA. It permitted the Navy to complete the exercises without an EIS. President Bush also determined that the use of MFA sonar is essential to national security and exempted the training exercises from the requirements of the CZMA. Both the district court and the Ninth Circuit ignored these exemptions, and the injunctions remained in place.
Our brief also points out that in 2007, the Secretary of Defense acting pursuant to a 2004 authorization from Congress, exempted the Navy's use of MFA sonar from the federal law protecting marine mammals, the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361. That statute is the principal legal protection under U.S. law for marine mammals, and generally prohibits the harassment, hunting, capturing or killing of these animals. Because the possible harms to marine mammals had already been considered -- and the risk deemed acceptable because traning with MFA sonar is too important to a well-prepared Navy -- an injunction to prevent speculative harm to marine mammals under NEPA was improper.
My Damon Key colleague Mark Murakami, who was part of the team that put this brief together, has blogged about the case over at hawaiioceanlaw.com here, here, and here.
Read our brief here.
The Court will hear oral arguments on Wednesday, October 8, 2008. More about the case:
- The Solicitor General's brief on behalf of the petitioners
- A summary of the case and links to the Ninth Circuit opinion and other amicus briefs from SCOTUSblog
In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating "prevailing party" attorneys fees in civil rights cases under 42 U.S.C. § 1988. The district court rejected the plaintiff's claim, and reduced both the number of hours the plaintiff's attorney claimed, and the hourly rate charged. The Ninth Circuit reversed, holding that before the district court could simply whack hours and rates, it must articulate its specific reasons for doing so.
The opinion was authored by Judge Kozinski, so it's an enjoyable read and I won't go into details since you can read the full analysis yourself here. There are some enjoyable and informative quotes worth remembering, however:
Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. (p. 9522)
By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. (p. 9524)
The district court has a greater familiarity with the case than we do, but even the district court cannot tell by a cursory examination which hours are unnecessarily duplicative. Nevertheless, the district court can impose a small reduction, no greater than 10 percent—a “haircut”—based on its exercise of discretion and without a more specific explanation. Here, however, the district court cut the number of hours by 25 percent, and gave no specific explanation as to which fees it thought were duplicative, or why. While we don’t require the explanation to be elaborate, it must be clear, and this one isn’t. (p. 9524)
The district court has discretion to determine the appropriate fee award, because its familiarity with the case allows it to distinguish reasonable from excessive fee requests. But gut feelings are not enough; if the district court is going to make substantial cuts to a winning lawyer’s fee request, it needs to explain why with sufficient specificity that the lawyer can meaningfully object and we can meaningfully review the objection. We can’t defer to reasoning that we can’t review; if all the district court offers is a conclusory statement that a fee request is too high, then we can’t tell if the court is applying its superior knowledge to trim an excessive request or if it is randomly lopping off chunks of the winning lawyer’s reasonably billed fees. (p. 9531)
Attorneys fees awards under § 1988 are important to land use lawyers since Fifth Amendment property rights are civil rights, violations of which are actionable under 42 U.S.C. § 1983.
The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs' Brief in Opposition in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State has sought a writ of certiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).
In that case, the Hawaii Supreme Court, relying on the "Apology Resolution," enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reached with Native Hawaiians about the status of that land. The Reply starts off by pointing out:
Respondents do not even dispute that the Hawaii Supreme Court was wrong on the merits in construing the federal Apology Resolution to strip the State of essential attributes of sovereignty over almost all state-owned lands. Respondents offer no defense of that construction because it is indefensible. Respondents instead suggest, in effect, that precisely because the Apology Resolution cannot support the result below, the state court must have relied on state law instead. But the court's interpretation of the Apology Resolution was both indefensible and the primary basis for its judgment. The result is an unprecedented affront to state sovereignty, committed in the name of federal law, and only this Court can undo the damage.
Reply Brief at 1 (emphasis original).
The State of Hawaii's cert petition is here, Pacific Legal Foundation's amicus brief supporting cert is here, the brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here.
The State's petition is scheduled to be considered by the Court at its September 29, 2008 conference.
The State of Hawaii Office of Hawaiian Affairs has filed its Brief in Opposition, arguing the U.S. Supreme Court should not review the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State has sought a writ of certiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).
In that case, the Hawaii Supreme Court, relying on the "Apology Resolution," enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reached with Native Hawaiians about the status of that land.
The Question Presented by OHA's BIO naturally frames the issue differently than the State did in its Petition:
Whether the Hawaii Supreme Court acted within its authority in relying upon Hawaii's laws and Constitution, as well as principles of trust law and the 1993 federal Joint Resolution to Acknowledge the 100th Anniversary of the January 17 1893 Overthrow of the Kingdom of Hawaii, to impose an injunction on the sale or transfer of the lands conveyed in trust to the State of Hawaii until the ongoing reconciliation process between the state and federal governments and native Hawaiians is completed?
BIO at (i) (emphasis original). The State of Hawaii's cert petition is here, Pacific Legal Foundation's amicus brief supporting cert is here, the brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here.
Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down of vacation rentals illegal.
I won't go into the details, since the Reply Brief spells out the arguments. It responds to the arguments in the County of Maui's Answering Brief, posted here. MVRA's Opening Brief, as well as links to media coverage of the case and issue, is posted here.
If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we're going to do whatever we can to avoid filing it so it gets considered on June 23.
Today's the third anniversary of Kelo v. City of New London, and also the day the Court denied review to a case which is the logical follow-up to Kelo, Goldstein v. Pataki.
[A follow up from a reader's comment: June 23 is "Kelo Day" - read more here.]
The US Supreme Court today denied review to three cases we've been following:
- Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) - Justice Alito would have granted the petition. Justice Alito had not been appointed to the Court at the time of Kelo, so this may signal another vote for property owners if this issue ever makes it back up.
- Matsuda v. City and County of Honolulu, No. 07-1305 (petition for cert. filed Apr. 14, 2008) (can a city bind itself to exercise eminent domain)
- Clark County v. Vacation Village, Inc., No. 07-373 (petition for cert. filed Sep. 17, 2007) (can state law award compensation for a taking of airspace)
Here's the Order.
The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States, No. 07-1521 (Fed. Cir. May 1, 2008).
In that case, the Federal Circuit held that when an innocent party's property is seized for use in a criminal prosecution but never used as evidence, no Fifth Amendment taking has occurred even though the property was rendered valueless during the time the government possessed it. The government seized a large quantity of legal prescription drugs in its investigation of a pharmacy but never used the drugs as evidence. Although the drugs were eventually returned to the owner, they had expired in the interim.
The Federal Circuit agreed with the government's argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated. Yes, paying for property seized as evidence may force the government to think about whether it should take the property, and to make choices. But isn't this choice required by the self-executing nature of the Fifth Amendment?
As a side note, compare the position of the federal government in AmeriSource with the Solicitor General's brief amicus curiae in Clark County v. Vacation Village, Inc., No. 07-373, which takes the position that requiring airport authorities to pay when they take airspace in flight paths won't substantially interfere with the nation's system of air travel.
More on AmeriSource here. Read the En Banc Petition here. Thanks to Columbia Law School (one of my alma maters) Professor Ronald Mann for the heads-up.
Today my Damon Key colleagues Mark Murakami, Christi-Anne Kudo Chock, and I filed for the Ocean Tourism Coalition a brief amicus curiae (88kb pdf) in the US Supreme Court supporting the petition for writ of certiorari filed in UFO Chuting of Hawaii, Inc. v. Smith, No. 07-1427 (petition for cert. filed May 12, 2008).
The petition seeks review of the Ninth Circuit's decision in UFO Chuting of Hawaii, Inc. v Smith, 508 F.3d 1189 (9th Cir. 2007), a case I blogged about here. In UFO Chuting, the Ninth Circuit held:
We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales.
Read the entire opinion here. The case is a challenge to the State of Hawaii's regulations restricting parasailing in waters off Maui, because they interefere with federal statutes and navigation rights. Mark analyzed the case on his hawaiioceanlaw.com blog here. Our brief focuses on one question presented:
May state regulation totally prohibit the free navigation of federally licensed vessels for five months of the year without violating the Supremacy Clause?
Brief at i. The petition for cert is posted here. Our amicus is posted here. The Supreme Court's docket report on the case is here.
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