Happy birthday inversecondemnation.com

Happy birthday to attorney Robert Thomas's inversecondemnation.com, a blog long (three years now!) devoted to developments and commentary on regulatory takings, eminent domain, inverse condemnation, property rights, and Hawaii land use law.

(Cross posted on Hawaii Appellate Law Blog)

Hanalei tour boat operator prevails against county's motion to shut it down

According to a Garden Island breaking news alert -

Fifth Circuit Judge Kathleen Watanabe Thursday denied the county’s request for a preliminary injunction to prohibit Lady Ann Cruises from operating commercial boat tours out of Hanalei Bay.

The ruling clears the way for Lady Ann to continue operating, after Watanabe ruled the county didn’t show enough evidence the county could prevail on the merits of its case (that Lady Ann lacked requisite permits necessary to operate out of Hanalei), show irreparable harm, or that approval of the preliminary injunction was in the public’s interest, said Richard Wilson, attorney for Lady Ann.
...
Honolulu attorney David Minkin is the special counsel representing the county in this matter.

The paper featured a lengthy piece yesterday providing some of the procedural and factual details -

The motion before her is a Kaua‘i County request for a preliminary injunction prohibiting Lady Ann Cruises from operating commercial boat tours out of Hanalei Bay, arguing the company lacks a necessary Special Management Area use permit to do business there.

Attorney Richard Wilson, representing Lady Ann Charters, said his client has the requisite SMA permit, but doesn’t need one because technically they aren’t operating within the SMA.

The SMA is defined by state law as the area extending inland from the shoreline.

Attorney David Minkin, representing Kaua‘i County, said two letters warning Lady Ann Cruises that they are operating without a necessary county permit, one sent each summer in 2007 and 2008, went unheeded, prompting this summer’s lawsuit seeking a preliminary injunction.

The county employees who testified were Ian Costa, Planning Department director, and Les Milnes, Coastal Zone Management planning inspector in the Planning Department, both witnesses for the plaintiff Kaua‘i County.

Wilson earlier said he would call as many as three witnesses, but didn’t call any, and at the end of testimony Tuesday was prepared to ask for a motion to dismiss the injunction, until Minkin said he had trouble with such a motion because, if it failed, it might allow Wilson to then call his witnesses and continue with the proceedings.

Watanabe agreed with Minkin.

Minkin in his closing statement said his client showed they’re representing the public interest, and does not have to show irreparable harm in order to be granted the preliminary injunction.

There was a violation of law, Lady Ann Cruises owner Mary Kagawa-Garcia was put on notice that she needed a permit to continue to operate in Hanalei, and she didn’t come before the county to get the permit, nor did she seek court relief, Minkin said.

Because there were new vessels or new owners in the Lady Ann Cruises case, they needed to come before the Planning Department or Planning Commission, and didn’t, Minkin said.

Wilson in his closing said Costa testified that Lady Ann Cruises does not need an SMA use permit, in direct conflict with Costa’s June 30 written declaration that says Lady Ann Cruises does need an SMA use permit.

“My clients aren’t engaged in any activities within the SMA,” Wilson said.

Minkin countered that the motion was brought pursuant to several laws, including the SMA rules of Kaua‘i County and a condition in permits approved for Mike Sheehan’s boatyard along the Hanalei River, as well as the state Coastal Zone Management Act and other provisions.

The paper promises more coverage in tomorrow's edition.

Whether agencies have the right to appeal OIP determinations

…was heard by the Hawaii Supreme Court earlier this month. Kauai v. OIP oral arguments are available on the judiciary website here. The ICA opinion is here.

The Office of Information Practices asserts in its application for writ of certiorari that the decision appealed from:

will significantly impact the public's access to its government's records, open the floodgates to litigation against OIP, undermine OIP's ability to provide an effective and efficient means for the public to appeal a government agency's denial of access, and provide authority for the liberal closing of government board meetings to the public based upon an overly broad interpretation of the attorney consultation exception to open meetings.

The case arose from an executive session held by the county council to discuss whether to investigate allegations of unethical activity in the Kauai Police Department. Kauai Police Commission Chairman Michael Ching subsequently asked the OIP to determine whether the closed meeting was proper under the state sunshine law. The OIP determined that the material discussed was not properly closed to the public and ultimately demanded that the county disclose the minutes except for limited portions constituting attorney-client privilege.

The county asked the 5th Circuit Court to declare OIP’s opinion invalid. There the OIP and the county got into an argument about whether the court had jurisdiction over the matter. The OIP argued that under the Uniform Information Practices Act (UIPA) agencies do not have the right to appeal OIP determinations. The county argued that under the state sunshine law agencies do have the right.

So they argued over which law governs – the UIPA, or the sunshine law. It’s an interesting question because, as the ICA would later point out, “both chapters…apply.” The UIPA requires the county to make public the minutes of “all agency meetings required by law to be public,” while the law that determines whether an agency meeting is required to be public is the sunshine law.

The OIP strenuously argued – and continues to argue – that “the Legislature’s clear intent [is] that, for public policy reasons, OIP, and not the courts, [is] the arbiter with final authority to order an agency to disclose a government record OIP deems public under the UIPA.” The circuit court disagreed, applied the sunshine law, and announced that it had jurisdiction over the matter.

In upholding the circuit court’s determination, the ICA noted a rule of construction whereby specific statutes are favored over general ones where there is an irreconcilable conflict between the two. The ICA reasoned that the sunshine law, specifically governing the question of what meetings are required to be public, is the specific law while the UIPA is the more general law.

The OIP makes a strong argument as to legislative intent. Specifically, OIP quotes the conference committee report on the relevant Senate bill as stating:

Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.

Nevertheless, questions raised by the Supreme Court seemed to indicate some due process concerns with leaving an administrative agency using relatively informal procedures as the tribunal of last resort on questions of government agency disclosures.

The Supreme Court also noted that a UIPA exception for disclosure exists for “[g]overnment records which, pursuant to… an order of any state or federal court, are protected from disclosure.” As it turns out, the records in question have been subpoenaed in connection with a federal court civil action and there happens to be a federal court order requiring that the minutes in question be withheld.

(Cross-posted at Hawaii Appellate Law Blog)

Live Tweeting the Hawaii Supreme Court

over at hawaiioceanlaw.com.

The Hawaii Supreme Court will be hearing oral arguments this morning in the case of Dupree v. Hiraga. Briefs and other materials over at www.inversecondemnation.com, post here.

I'll be live-tweeting the argument, albeit on my iPhone (excuse the typos). Follow me at twitter.com/hawaiioceanlaw.

Defense bar take note

NYTimes - DNA Evidence Can Be Fabricated, Scientists Show

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics.
...

The authors of the paper took blood from a woman and centrifuged it to remove the white cells, which contain DNA. To the remaining red cells they added DNA that had been amplified from a man’s hair.

Since red cells do not contain DNA, all of the genetic material in the blood sample was from the man.

Friday lizard

Usually not so bold, this anole hangs around in the bushes in the front of the house. (You'd think it wouldn't be so hard to come up with a lawyer-reptile joke. Can't think of one).

9th Circuit adopts rule determining when use of a coerced statement violates the Fifth Amendment

Over at Hawaii Appellate Law Blog.

Court throws in the towel on unauthorized practice of law rule

It has been a controversial proposition from the start. An early draft appeared to indict everyone from real-estate agents to accountants to insurance agents. And the attorney general eventually weighed in against the proposal. Now, according to the Pacific Business News -

Chief Justice Ronald Moon has indicated that the issue is dead.

“In light of the concerns expressed by the attorney general, the many comments received, confusion about the relationship between the proposed regulatory rule and the criminal law, and the lack of a clear enforcement process, the justices have decided to table the proposal with no immediate plans for further consideration,” Moon wrote in a July 2 letter to Hawaii State Bar Association President Rai Saint Chu.

HI Supreme Court – you cannot physically bar the police from illegally entering your home

Over at Hawaii Appellate Law Blog.

The problem with Kauai’s TVR ordinance’s ag-lands grandfather clause

Someone recently asked for my comments, as a legal blogger, about Kauai Ordinance 864, regulating single family transient vacation rentals, and whether last year’s amendments to the zoning ordinance were legal – specifically the article prohibiting, barring certain conditions, the issuance of non-conforming use certificates for existing single family TVRs on ag lands. (The ordinance can be downloaded from the county website, here).

The ordinance added § 8-17.10 (d) which provides:

Pursuant to HRS Chapter 205, no nonconforming use certificate shall be issued for any single-family transient vacation rental located on land designated “Agricultural” by State law, unless:

(1) It was built prior to June 4, 1976, or
(2) The Applicant has a special permit under Hawai’I Revised Statutes, Section 205.6 which specifically permits a vacation rental and the permit was secured prior to the enactment of this ordinance.

Normally, new zoning regulations limit their reach to nonconforming uses that commence after the regulation goes into effect. For one thing, state law (specifically, HRS 46-4(a) which empowers counties to regulate zoning) does not allow zoning ordinances to retroactively prohibit the continued use of a property that had been lawful before the ordinance. That is, an ordinance regulating single family TVRs on ag land cannot prohibit the continued use of a dwelling on ag land property as a TVR that was in use at the time of the ordinance – so long as that prior use was legal.

And besides, preexisting lawful uses of property are generally considered to be vested rights protected from governmental interference pursuant to due process principles under both the state and federal constitutions. (See, e.g., Waikiki Marketplace Investment Co. v. Chair of Zoning Board of Appeals, 949 P.2d 183, 86 Haw. 343 (Haw.App. 1997)).

Indeed, Ord. 864’s article regarding uses of non-ag-land single-family TVRs rendered non-conforming by the ordinance reflects this limitation by grandfathering otherwise legal dwelling units that were “being used as a vacation rental on an ongoing basis prior to the effective date of this ordinance.” § 8-17.10 (c).

Clearly then, any legal wrangling would come down to the question of whether single-family dwellings were legally operating as TVRs before passage of Ord. 864 last year. Because, if they were, the county can’t shut them down by zoning ordinance. In the public debate, one often hears the conslusory comment that TVRs (and by implication, single-family TVRs) were already illegal on ag lands even before the new ordinance.

The trouble with that position, however, is that the Hawaii statutes provide a legal definition of transient vacation rental (in the context of time share regulations), and that definition explicitly omits single-family dwellings. (HRS §514E-1: “"Transient vacation rentals" means rentals in a multi-unit building to visitors over the course of one or more years, with the duration of occupancy less than thirty days for the transient occupant”). And prior to passage of Ord. 864, the Kauai zoning code’s definition of transient vacation rentals mirrored the state definition word-for-word.

So, with regard to single-family dwellings, there’s no obvious way, prior to Ord. 864, to legally distinguish those with a duration of occupancy of less than thirty days from those with a duration of occupancy of thirty days or more. In other words, there appears to be no legal ground prior to Ord. 864’s change of definition, to tell those owning single-family TVRs that the use of their property, as a legal matter, constituted anything other than residential use.

And certainly people running single-family TVRs had nothing approaching legal notice that their activity was anything other than legal. After all, the county ordinances that regulated short-term rentals explicitly omitted their properties from regulation by defining TVRs as “multi-unit buildings.”

I’m going to predict, then, that those arguing that single-family TVRs in operation before the ordinance are by law grandfathered in have the upper hand, legally speaking, anyway, and that it will be an expensive prospect for the county to try to enforce the prohibition of single-family TVRs on ag land against those in existence before the ordinance was passed.

Is it just some nut, or is there method behind her madness?

From a Dept. of Health news release today -

The Hawai’i State of Hawaii Department of Health (DOH) is warning all Kaua‘i restaurants and food establishment owners to beware of an adult female presenting herself as a “sheriff representing the health department.” The individual allegedly has entered various establishments demanding to see permits, licenses and other confidential documents. The individual does not represent the DOH and does not possess valid identification.

The Kaua‘i District Health Office was also recently informed of a female identifying herself as “Carol from the department of health” that had telephoned a food establishment in Lihue requesting personal and confidential information

They have both kinds of food

at the Lihue airport.

New Hawaii Appellate Law blog

It's called the Hawaii Appellate law Blog, and if you click over to it you'll recognize the header wave - and the choice of a goofy title font. Blogging here at Planet Kauai has suffered as I've become increasingly busy with work. Meanwhile, the posts have increasingly taken on a sort of technical legal outlook that I imagine hardly appeals to a non-lawyer crowd. Hawaii Appellate Law Blog will be the new repository for the more legally technical of my efforts, and will also provide me with an excuse to write more legal content. I'll continue to post on topical subjects here at Planet Kauai as I have in the past (think Superferry or ceded lands legal commentary, for instance), and geckos and wine and food and whatever else I like.

I certainly don’t expect the Hawaii Appellate Law Blog to hold much appeal for a wider audience of non-practitioners (how's that for an endorsement?). Officially, it "provides analysis and commentary on appellate practice, developments in Hawaii law, decisions of Hawaii's appellate courts and, to the extent they relate to Hawaii law, decisions of the Ninth Circuit Court of Appeals and the United States Supreme Court." I expect the posts will be mostly comprised of chunks of substantive law grabbed from opinions filed by the Hawaii appellate courts and organized by topic. I foresee it eventually serving as a poor man’s (poor person’s) online Hawaii law treatise. We'll see.

The Garden Island grows a pair

Announces it will act like Fourth Estate

When the Kaua‘i County Council went into executive session Wednesday, The Garden Island filed a pair of requests to access government records as part of a new policy seeking greater transparency from the county.
...
The Garden Island will be filing similar requests for all County Council executive sessions going forward, regardless of their content.

I hope the paper is prepared to go to the mat (read, courthouse) when the county routinely denies such requests. Even then, despite the legislature's clear intent, I'm not sure the Hawaii courts (well, the 5th Circuit, at any rate) are 1000% behind the whole open government thing.

In any case, this is an excellent development. I applaud the paper, hope for much success, and look forward to lots of litigation.

In May 1789, Louis XVI summoned to Versailles a full meeting of the 'Estates General'. The First Estate consisted of three hundred clergy. The Second Estate, three hundred nobles. The Third Estate, six hundred commoners. Some years later, after the French Revolution, Edmund Burke, looking up at the Press Gallery of the House of Commons, said, 'Yonder sits the Fourth Estate, and they are more important than them all.'

- Jeffrey Archer, The Fourth Estate

Ka Loko Dam Breach civil suit settlement

Malia Zimmerman has the story here. According to her report, "Pflueger’s attorneys are pushing for the settlement to be sealed."

Ian Lind has a nice exposition of "a series of legal opinions by the Office of Information Practices barring public agencies from entering into confidentiality agreements that contradict the law requiring most government records to be available for public inspection and copying" and potential exceptions.

Longish AP piece on Akaka Bill's new potential

In the Seattle PI today -

Sam Hirsch, deputy associate attorney general for the Justice Department, told the Senate Committee on Indian Affairs Thursday that the department "strongly supports the core policy goals" of a bill allowing for self-governance by Native Hawaiians.

Once established, the new government would negotiate with the state and the federal government over which assets the new government would own. Currently, the state administers 1.2 million acres of former monarchy land, and some of that land could revert to the new Native Hawaiian government.
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Hirsch took issue with some of the key issues raised by the Bush administration, which cited court rulings stating the "history of indigenous Hawaiians .... is fundamentally different from that of indigenous groups and federally recognized Indian Tribes in the continental United States."

Hirsch said Native Hawaiians have much in common with Indian tribes. Congress recognized that similarity when it set aside lands expressly for their benefit. He noted that Native Hawaiians exercised self-rule prior to the arrival of Western explorers, and have collectively worked to preserve traditional culture just as Indian tribes have.

Hirsch also said no court has squarely answered the question of whether Congress has the authority to treat Native Hawaiians in the same manner as members of an Indian tribe.
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Stuart Benjamin, a professor at Duke Law School, told the committee that the bill would test the minimum requirements for what constitutes an Indian tribe. "No tribe has ever had the paucity of connections that exist among Native Hawaiians," he said in his written testimony.

Inside baseball correction of my Coconut Beach development post

An attorney with some connection to the case emailed me regarding my previous post about the Coconut Beach Development case and made the point that the proceeding was a non-jury trial. That means the appropriate rule is not HRCP 50 but is instead HRCP 52(c). For those keeping score at home, then, I don't find after a quick, cursory search of Hawaii cases a standard of review the appellate court applies when review Rule 52(c) motions. However the rule is substantially similar to the federal rule, and so here's the Ninth Circuit's take on the issue (from Taylor v. Bakersfield City School Dist., 119 F.3d 7 (9th Cir. 1997)(memorandum opinion)):

We review factual findings made pursuant to a Fed.R.Civ.P. 52(c) dismissal under the clearly erroneous standard. See Fed.R.Civ.P. 52(c) Advisory Committee Notes; Johnson v. United States Postal Serv., 756 F.2d 1461, 1464 (9th Cir.1985) (stating test for Rule 41(b), the precursor to Rule 52(c)). We review the district court's ultimate findings pursuant to a Rule 52(c) dismissal de novo. See id. at 1465.

Furthermore, in contrast to Rule 50, when deciding whether to enter judgment on partial findings under Rule 52(c), the district court is not required to draw any inferences in favor of the non-moving party; rather, the district court may make findings in accordance with its own view of the evidence. Ritchie v. U.S., 451 F.3d 1019, 1022-23 (9th Cir. 2006):

Rules 50(a) and 52(c)...assign very different functions to the district judge. Rule 50(a) provides that once a party has been fully heard on an issue during a jury trial, the court may grant a motion for judgment as a matter of law against the non-moving party only if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). The rationale is obvious: During a jury trial, the jury - not the judge - is the trier of fact. Because the district judge lacks the authority to resolve disputed issues of fact under those circumstances, judgment as a matter of law is appropriate only if no reasonable jury could find for a party on that claim. This necessarily means that the court must draw all reasonable evidentiary inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("[O]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." (ellipsis in original) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)) (internal quotation marks omitted)). When the jury is the trier of fact, judgment as a matter of law is appropriate only if no reasonable jury could find in favor of the non-moving party. See id.

By contrast, a motion for judgment on partial findings under Rule 52(c) may be made only during a bench trial. Under Rule 52(c), "the court may enter judgment as a matter of law . . . with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Fed.R.Civ.P. 52(c). Rule 52(c) expressly authorizes the district judge to resolve disputed issues of fact. See Fed.R.Civ.P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous."). In deciding whether to enter judgment on partial findings under Rule 52(c), the district court is not required to draw any inferences in favor of the non-moving party; rather, the district court may make findings in accordance with its own view of the evidence.(fn7)
...

FN7. The Supreme Court has held with respect to Rule 52(c)'s predecessor that the district court need not give the non-moving party any favorable inferences. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) ("[A]lthough a court might, after reviewing the evidence, decide in favor of the party moving for a dismissal under Rule 41(b)[Rule 52(c)'s predecessor], that court might not take the same case away from the jury because it might believe that the jury could reasonably find for the non-moving party."); see also Fed.R.Civ.P. 52 advisory committee's note to 1991 amendment.
That the phrase "judgment as a matter of law" appears in both Rule 50(a) and Rule 52(c) may be confusing, but it is not dispositive. As described above, the standard for entering judgment as a matter of law differs under each of these rules.