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
Check out Jay Fidell's op-ed in the Honolulu Advertiser, "Appeals court decision threatens our biotech sector" about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).
In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae. Jay writes:The case involves a permit for importation of a genetically engineered algae, a choice target of environmental activists. But the court decision is not limited to genetically modified organisms: It covers all animal and plant organisms, GMO and otherwise. And it doesn't affect just permit applications — it also affects permits already granted for organisms already in the state. Agricultural research and cultivation also will undoubtedly be affected. Hard cases make bad law.The retroactive nature of the decision reminds us of the Superferry. There, the applicant did everything the Department of Transportation asked for and got its approval. Then, years later, the court imposed additional requirements. How different is that from what happened here? The applicant here did everything Agriculture asked for and got its permit. Then, years later, the court imposed additional requirements. How can you rely on what government tells you? How can you do a business plan? How can you get investors?Our summary of the decision here.
My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial "State upholding public policy in Kahala beach access issue." It seems that vegetation growing on private property is moving -- either on its own or with help -- makai (towards the ocean), thus crowding onto the public beach. The editorial rightly recognizes:
Sooner or later, vegetation and waves converge, preventing people from moving laterally along public land, which law defines as the highest wash of waves at high tide during the highest surf season, "usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves."
As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are public up to "the high wash of the waves," and the high wash can "usually" be shown by the vegetation line or the debris line. So far, the editorial is on the mark. But then it goes somewhat off-track:
In 2006, the Hawaii Supreme Court, reaffirming decisions made in the 1960s and 1970s, said the state, in determining shorelines certification, could not use vegetation strictly as the marker since that encouraged landowners to use plantings to extend their property further makai, contrary to objectives and policies of state law.
Yes, technically the Supreme Court did say that about "shorelines" in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006), but the editorial mixes apples and oranges because that case did not involve the public-private shoreline boundary, only the definition of "shoreline" for purposes of measuring the shoreline setback (the no-build zone on beachfront property). The court in Diamond relied on the legislative policies established in the Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A to hold as it did, policies that the state is prohibited from exercising when it comes to actually acquiring property.
The shoreline certification process under the CZMA is not supposed to affect property rights or determine where the public may or may not access. If it does, then it becomes a taking for which the property owner is owed compensation. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), where the Court held a regulation which prevented an owner from building on his property was a taking when it wiped out economically beneficial use of the parcel. For an example of a taking of beachfront property, see this post about Hawaii's Act 73, which purported to grab accreted land for the public without compensation.
The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). The court ruled on two issues related to the importation of genetically-modified algae into Hawaii by the tenant of a State-owned facility on the Big Island of Hawaii:This appeal presents two issues: (1) whether the Board was required to comply with the Hawaii Environmental Policy Act (HEPA), Hawaii Revised Statutes (HRS) chapter 343, before approving a permit to import genetically engineered (GE) algae for production in a facility on state lands; and if so, (2) whether two prior environmental impact statements (EISs) prepared for the state lands where production of the GE algae is planned satisfied the Board's HEPA obligations.Slip op. at 1-2. I attended the oral arguments and blogged about the issues in the case here.
The ICA held the Board should have required an EA. The court rejected the Board's argument that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process for the importation of microorganisms worked an implied repeal of the EA requirement. The court held that the plan to grow the organisms at the state facility is "an action that proposes the use of state land," slip op. at 13, and therefore "HRS § 343-5 plainly and unambiguously required the preparation of an EA before the Board could approve [the] application." Id. The court held that although chapters 343 and 150A may "overlap in their application and purpose, they do not conflict and both can be given effect." Id. at 16.
On the second issue, the ICA held the two earlier EISs did not satisfy the Board's obligations:
The two EISs, which were prepared more than three and two decades ago, respectively, confirm that the NELH and HOST parks were still conceptual or in their infancy stages when the EISs were prepared. It is clear from the EIS that as the nature and details of individual projects to be conducted at either park became known, further HEPA review was expected.Slip op. at 21. The ICA did not address how this holding squares with section 343-5's requirement that the EA be accomplished at "the earliest practical time." The Hawaii Supreme Court addressed this requirement in the "Koa Ridge" case. Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006).
The recording of today's oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603 has been posted here. (Be prepared -- it's a 93mb file). The briefs of the parties are posted here.
A report from KHON-TV2, with video of the site and the arguments is posted here.
The appeal involves the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.
Update: Charley Foster has posted a summary of the arguments and analysis.
On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement. Here are the main merits briefs of the parties:
Opening Brief (2.5mb pdf)
City's Answering Brief (1.3mb pdf)
- Kuilima_Resort's Answering Briefs (3mb pdf)
The issue, as stated by the Appellants:
Does the Hawai'i Environmental Protection Act (HEPA) [Haw. Rev. Stat. § 343-1, et seq.] and the Environmental Council Rules (HEPA Rules) obligate a public agency to determine whether a project requires a Supplemental Environmental Impact Statement (Supplemental EIS or SEIS) where new circumstances and evidence bring to light likely increased environmental impacts not previously dealt with in the project's twenty-two (22) year old EIS?
Opening Brief at 1. The Resort, naturally, phrases the issue somewhat differently:
Plaintiffs challenge Kuilima's development Project, which the City and State entitled in 1986 based in part on the EIS. Since the entitlements, and until this litigation began in January 2006, the Project proceeded forward. Plaintiffs emphasized at the trial level that the lapse in time from 1986, without completion of the Project, is a "change" in the Project that, coupled with alleged changes in the regional environment over that time, requires an SEIS. Plaintiffs continue to rely on alleged regional changes in environmental conditions since the acceptance of the EIS, but now argue that those changes, by themselves, form a stand-alone basis to require an SEIS under the last sentence of HRS [sic] § 11-200-27. This misinterpretation of the SEIS Rules is just another argument that the lapse of time is enough to require an SEIS. [footnote omitted]
Kuilima Resort's Answering Brief at 1.
Remember that whopping $36.8 million inverse condemnation judgment against the City of Half Moon Bay, California by the U.S. District Court back in November 2007? Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007). The city said at the time it was going to appeal, and it hired some pretty impressive guns to do so. Now, however, it appears that the city has changed its mind, as reported in the San Francisco Chronicle's story, "Half Moon Bay's plan to avert fiscal ruin."
In a move to save their city government, Half Moon Bay officials tonight approved a settlement agreement with a developer who won a $36.8 million court judgment last fall that threatened to leave the city in financial ruins.
The Half Moon Bay City Council signed off on an $18 million settlement to developer Charles "Chop" Keenan, whose trustee wanted to build an 83-unit subdivision on a 24-acre property that the city had inadvertently turned into protected wetlands.
Under the agreement, which was accepted by the developer, the city could get out of paying a cent if it can successfully get special legislation passed that would allow Keenan to build 129 lots on the property and an adjoining parcel, bypassing wetlands protection laws.
Read the complete report here. The city probably should have thought about the consequences before it turned the plaintiff's property into undevelopable wetlands, but government regulators often don't seriously consider the possibility of losing. The law is stacked against property owners, and government has no problem interposing all sorts of procedural hurtles in an effort to expense the property owner down (as one government attorney once confessed, "we'll 'motion' you for a year before we ever reach the merits"). Even if the government eventually loses, any monetary judgment will be paid with O.P.M. (Other People's Money). In this case, however, the judgment was more than three times the annual municipal budget, an amount so large it could not be ignored by the city fathers and mothers.
Read the District Court's 167-page Findings of Fact and Conclusions of Law if you want to find out the whole sordid story of what led up to the judgment.
The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the "use" of a state or county road as a trigger to chapter 343 environmental review:
The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.
Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant's project (broadly construed to include both the specific proposal and, as in the Superferry case, the "secondary impacts" of the project) proposes the "use of state lands."
The "Koa Ridge" case mentioned in the article is Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), which I discussed in this post. In that case, the court noted its earlier decisions determining that the "use of state lands" trigger was to be taken both literally and liberally. "Use of state lands" thus includes construction of two underpasses under a state highway, Citizens for Prot. of N. Kohala Coastline v. County of Hawaii , 91 Haw. 94, 979 P.2d 1120 (1999), and the placement of a drainage system under state land that was part of a larger project. Kahana Sunset Owners Ass'n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997).
A round up of posts of possible interest to readers:
- Koloa Creekside sues county -- a developer is suing the County of Kauai for civil rights violations, and unlawful exactions:
The 18-page lawsuit names as defendants the county of Kaua‘i, the Planning Commission, and the Planning Department and its director. It asks for the Koloa Creekside Estates project to be found exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, if not, the imposed conditions to be declared unlawful.
The developer also opposes some requirements that it was previously willing to concede — such as a land dedication, impact fees and construction schedule, the lawsuit states.
Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.
- Charley Foster at Planet Kauai adds his comments on the NY Times story about the NIMBY phenomenon in Hawaii.
- Jesse Souki at Hawaii Land Use Law blog digests HAWSCT's latest water law decision, In re Contested Case Hearing on the Water Use Permit Application Filed by Kukui (Molokai), Inc., No. 24856 (Dec. 26, 2007), here. Jesse also comments about Honolulu's proposal for an "affordable housing" exaction here.
- Jay Fidell at Hawaii Public Radio recently had a ThinkTechHawaii program on the possibilities for a constitutional convention. Podcast here. HPR news has posted a summary podcast here.
- In Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, No. 07-35506 (9th Cir. Jan. 3, 2008), the Ninth Circuit upheld a gold mining permit issued pursuant to the Clean Water Act.
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