On Facts and Law and Ham Young v. Lee, et al

I wrote about this case back in April when the appellate decision came out. So When I read Joan Cornow's characterization of it on her KauaiEclectic blog today in a post explaining her lack of sympathy for rich people I felt competent and compelled to offer a correction. Joan wrote

Pierce Brosnan...has been touted as nice by many, yet he’s waged a long and costly war over water with a Hawaiian farmer — he wants it for landscape ponds, she wants it grow [sic] taro...

This gives the false impression that water is taken for the ponds and withheld from, or not available for, or is rendered somehow useless or damaging for taro farming. But that's not true. In fact, the water in question runs unimpeded through the ponds on its way downstream to the property where the taro is. Moreover, the farmer - Catherine Ham Young - didn't even argue that running the water though the ponds diminishes or otherwise affects the amount or quality of water that passes over the Brosnan property and on down to her taro. Here's how the appellate court summarized her position in ruling that she had no case against the Brosnans (emphasis in original)

Ham Young has not argued that the use of the water from the Ditch to fill the Ponds is unreasonable because circulating the Ponds changes the volume, flow, temperature, turbidity, or other physical characteristic of the water. Ham Young has not argued that the defendants have no right to use water from the Ditch in connection with the Lee Property. Instead, on this point, Ham Young argues the use of the water in conjunction with ornamental Ponds is per se unreasonable, regardless of whether it affects the quality, quantity, or other physical characteristics of the water. Put another way, Ham Young argues that she has a right for the water not to pass through the Ponds on the Lee Property, regardless of whether her use of the water is affected.

So the case falls flat, or even backfires, as a vehicle for pressing Pierce Brosnan into service as the villain in a class/race morality play.

(Ham Young did not lose on every point of the appeal. She had argued that when the previous owners - the people who owned the property before the Brosnans did - enlarged and deepened the ponds they temporarily blocked the water so that "in late 1999 and through 2000, virtually no water flowed" to her property and she thereby suffered damages to her taro crop. And the appellate court remanded to the trial court for further proceedings on that claim against the previous owners.)

Now give me a monthly legal column

(Just kidding).

The Corrections and Clarifications in today's Garden Island states

The Dec. 12 story “Judge: Hapa Trail belongs to state” should have attributed to Charley Foster’s Planet Kaua‘i blog the six bullet points that Theodore Blake’s lawsuit contends.

The highest form of flattery, maybe?

I'm informed some of my blogging appeared in Saturday's Garden Island. That's kind of exciting. It would be even more so if the paper had showed me some love by way of attribution.

The story concerns a case filed back in March of 2009 over the Knudsen Trust's planned Village at Poipu development. Here's how I summarized the various claims in the complaint in a piece I posted in April of '09:

• that the process of considering the Knudsen Trust's Village at Poipu development proposal violated the state public trust doctrine;
• that in the process of considering the Knudsen Trust's application for final subdivision approval of Phase One of the development, defendants failed to thoroughly investigate and protect Native Hawaiian rights;
• that defendants failed to comply with the requirements of HAR Chapter 13-284 - the administrative rules governing the review process the SHPD is to follow in making comments to state and county agencies on entitlements affecting historic properties;
• that the development threatens to cause irreparable injury to burial sites and other historic sites;
• that defendants failed to comply with the objectives, policies, and guidelines of HRS 205A, specifically, "the protection, preservation, and restoration of historic and prehistoric resources in the coastal zone management area that are significant to Hawaiian history and culture"; and
• that a supplemental EIS is required to address a plan to cross the Hapa Trail with a street.

And that's pretty much how the Garden Island summarized the complaint in its story Saturday about a decision in the case that occurred Tuesday. Prolific GI commenter, kauaiauwe (not me, I promise) noticed the nearly identical passages and said so in a comment to the story.

Hey, I'm happy for the paper to reprint anything I've written on Planet Kauai. But I'd appreciate a little nod. Something along the lines of, "According to Kauai attorney and legal blogger Charley Foster..." would be nice.

Worth passing along - a hack that enables printing to any printer from iPad (and iPhone, too)

Wired - Print With Any Printer From iPad, iPhone

Apple's latest mobile-operating-system update introduces a much-demanded feature: wireless printing. Problem is, it will only officially print from printers labeled 'AirPrint-compatible,' which you likely don't own. However, if you want to print from just about any printer, there's a mod for that.

AG Mark Bennett to join Starn O'Toole Marcus & Fisher

KGMB and KHNL:

In Jan. 2011, Bennett will be a director specializing in complex litigation at both the trial and appellate levels.