Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a “petition to watch” for the Supreme Court’s March 27, 2009 conference.
The petition asks the Court to overrule Williamson County Regional Planning Comm’n v.
“One more victory such as this and we shall be ruined.”
So lamented Pyrrhus, the king of the eponymous victory — a win so costly it cannot be savored. It’s a term the New London Development Corporation, which prevailed in U.S. Supreme Court in the now-infamous eminent domain case Kelo v. City of New London,545 U.S. 469 (2005) must know all too well. After its victory permitting the condemnation of people’s homes for “economic development,” not only did the public revulsion at the outcome result in a majority of states attempting to curtail eminent domain, the NLDC’s Fort Trumbull project shriveled up in the glare of public scrutiny and outrage and the properties seized remain vacant. The case stands as a lesson for litigants who believe that a court decision represents the final word on an issue.
If the public reaction to the Hawaii Supreme Court’s decision in round 2 of the Hawaii Superferry case is any measure, Kelo may offer some lessons. A review of some of the comments following the reports about the court’s decision and its consequences by Honolulu’s two daily papers reveals a surprising level of anger and frustration:
The editorial pages are also getting into it:
Environmental and community-action groups such as the Sierra Club andMaui Tomorrow now find themselves in the crosshairs of many residentsfrustrated by recent developments with the Hawaii Superferry.
- Ending Superferry service would be a blow to Hawaii (Star-Bulletin)
As a result, the notion of an unfriendly business climate in Hawaiigains credibility; an enterprise with nearly 300 employees has beenshut down indefinitely, maybe permanently; travelers, farmers andothers who have come to rely on the service are left without service;and the state faces a possible loss of millions of dollars in ferryrevenue and further litigation.
Like Kelo, the two Hawaii Superferry decisions by the Hawaii Supreme Court have starkly illustrated for the public the practical consequences of the laws they accede to. In Kelo, the veil was finally lifted from the public’s eyes as to how eminent domain really works, and the inherent unfairness in how the condemnation power is exercised. After Superferry, it seems people are beginning to understand how environmental laws can be leveraged to take down a popular service that has appeared to inflict no environmental harm for the year it has been in operation. Make no mistake: the goal of the litigation was never simply to protect the process and insure that all information was gathered so that a good decision would result — it was designed, at least in part, as DBTD – Death By a Thousand Days. And it appears to have succeeded.
It remains to be seen whether the anger expressed translates to action as in Kelo and whether the legislature will consider streamlining or revising the EA/EIS process. For an example of how the U.S. Supreme Court dealt with a similar issue, see this post on Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov. 12, 2008).Continue Reading Lessons For Superferry From The Kelo Aftermath?
Three more amicus briefs supporting the petition for writ of certiorari in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009).
In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200
The Hawaii Supreme Court has accepted an application for writ of certiorari to review the Intermediate Court of Appeals’ decision in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008).
In that case, the ICA held that Honolulu’s Director of Planning and Permitting has the express
“Susette Kelo’s legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Dozens of states have tightened rules for eminent domain. Many have simply banned the practice of eminent domain
Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009. As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to
The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.
A certain segment of Hawaii’s population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don’t view
We’ve read all 124 pages of the Hawaii Supreme Court’s opinion (warning: massive pdf) and the concurring and dissenting opinion in the “Hawaii Superferry” case, Sierra Club v. State Dep’t of Transportation, No. 29035 (March 16, 2009), and will post about it soon.
In the meantime, enjoy the media scrum which includes reports from
Little Pink House – A True Story of Defiance and Courage, the recently-published book about the infamous 2005 eminent domain case Kelo v. City of New London,545 U.S. 469 (2005) (available from Amazon here), is generating interest:
According to this story from the BLT (Blog of Legal Times), President Obama has appointed Judge Emily C. Hewitt as the new Chief Judge of the Court of Federal Claims.
This is of interest to readers of this blog, of course, because the CFC hears regulatory takings and inverse condemnation claims by property owners who