Akaka Bill activity

"The events of the past 24 hours were totally unexpected. I was very surprised. I was not aware that the revisions to the bill being discussed between Senator Akaka’s office and President Obama’s administration were not shared with Governor Linda Lingle. I am in the process of trying to determine what happened and the best course forward,” said Inouye.

Human Events has a long, interesting, inside-baseball piece on recent Akaka Bill activity.

Here are the results of the Grassroots Institute-commissioned Zogby International poll mentioned in the article.

ICA declines to expand historic preservation-burial requirements

Hui Malama I Na Kupuna O Nei, et. al. v. Wal-Mart, et. al. arose from the inadvertent discovery in 2003 of forty-two sets of human remains during clearing and grading operations in urban Honolulu in preparation for construction of a Wal-Mart. Plaintiffs sued, claiming that the city violated the state historic preservation law (specifically, HRS § 6E-42(a)) and that such violation rendered Wal-Mart’s grubbing, grading and other permits null and void.

Plaintiffs asked for a judgment enjoining Wal-Mart from engaging in further construction activities at the site. Plaintiffs next filed a motion seeking an injunction against Defendants to prevent the removal and relocation of any of the human remains until the circuit court issued a ruling on the claims in the first complaint.

HRS § 6E-42(a) provides that before approving any project involving a permit, “which may affect…a burial site,” the permitting agency must give the DLNR (more specifically, the SHPD) the opportunity to review and comment on the effect of the proposed project on the burial site. Plaintiffs argued that this section required various of the Defendants to seek SHPD review and comment.

However, the circuit court held that the statute requires review and comment only when a permitting agency “knows, or has reason to suspect, that the project may impact a burial[.]” The court found no evidence that the Defendants knew or should have known that a burial site existed on the property, and ruled therefore that the statute was not violated. (The property, originally marshland, had been filled and extensively developed and used by commercial and industrial tenants for at east fifty years. Also, according to the I.C.A., multiple environmental, archeological, and other assessments of the property had been conducted over the previous decade, none of which indicated the existence of the burials).

Plaintiffs argued on appeal that the circuit court’s interpretation of the statute “violates the spirit, purpose, and intent of Chapter 6E to protect all burial sites, especially those not yet identified and/or located.” Plaintiffs urged an interpretation of § 6E-42(a) as requiring all permitting agencies to seek review and comment from SHPD “prior to granting any project approvals.” The ICA rejected Plaintiffs’ interpretation as violative of a plain reading of the statute.

The circuit court had also concluded that since Wal-Mart had completed its construction activities on the property and was issued a certificate of occupancy from the city, Plaintiffs’ claims and requests to nullify Wal-Mart’s grubbing, grading, and other permits were moot. Although not discussing the circuit court’s mootness finding, the ICA mentioned it and affirmed the circuit court’s order in which the finding was made.

Akaka Bill news

The AP -

Two congressional committees are considering legislation this week that would let native Hawaiians establish their own government, much like those organized by hundreds of Indian tribes.

The House Natural Resources Committee takes first crack at the bill Wednesday. The Senate Indian Affairs Committee takes up the legislation Thursday.

The legislation had been expected to easily win the committees' approval, but Hawaii's governor and attorney general voiced objections late Tuesday to some of the changes that sponsors plan to propose. In light of the objections, Republican lawmakers have asked for a delay. Democrats, however, sensing they have the votes to prevail, are determined to proceed.

Federal lawsuit filed challenging change in commercial fishing rules

From a press release on Center for Biological Diversity letterhead -

Today conservation groups Turtle Island Restoration Network, the Center for Biological Diversity, and KAHEA, all represented by Earthjustice, filed a lawsuit in federal district court in Honolulu challenging the National Marine Fisheries Service’s issuance last week of a rule that removes all limits on effort in the Hawaii-based longline swordfish fishery and allows the fleet to catch nearly three times as many loggerhead sea turtles as was previously permitted.

The complaint is here.

Nominees in upcoming ICA and 1st Circuit Court appointments

Hawaii Gov. Linda Lingle on Monday released two lists of judicial nominees given to her by the Judicial Selection Commission to fill one vacancy each on the state Intermediate Court of Appeals and 1st Circuit Court in Honolulu.

Pacific Business Report has the lists.

Good Lord, I would hope so

AP - Ohio justices: Cell phone searches require warrant

Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger, a divided Ohio Supreme Court ruled Tuesday on an issue that appears never to have reached another state high court or the U.S. Supreme Court.

The court ruled 5-4 in favor of Antwaun Smith, who was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant.

Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it. They found a call history and stored numbers that showed Smith had previously been in contact with the drug user.
...
During his trial, Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure.

I would think that would be a slam dunk. However -

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant.

The article goes on to describe the state supreme court's rejection of the trial court's analysis.

"Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.'

Here is John Wesley Hall's related post with a link to the decision on his blog, FourthAmendment.com.

HawaiiOceanLaw.com to liveblog upcoming Hawaii Supreme Court EIS case

HawaiiOceanLaw's Mark Murakami promises to live blog Hawaii Supreme Court oral arguments in Unite Here! Local 5 v. City and County of Honolulu. According to the court's oral argument schedule -

[T]his case arises from the proposed expansion of the Kuilima Resort at Turtle Bay on the North Shore of O`ahu for which an environmental impact statement (EIS) was completed, pursuant to the Hawai`i Environmental Policy Act (HEPA) (codified as Hawai`i Revised Statutes (HRS) chapter 343), and accepted in 1985 by the Department of Land Utilization (DLU) [hereinafter, the 1985 EIS]. The dispute centers around whether Kuilima’s subdivision application, filed in 2005, triggered the need for a supplemental EIS (SEIS), pursuant to the administrative rules underlying HEPA, specifically, Hawai`i Administrative Regulations (HAR) §§ 11-200-26 and 11-200-27 (governing SEISs). The circuit court, in granting summary judgment in favor of the defendants, ruled that a SEIS was not required, and the plaintiffs appealed.

On appeal, a majority of the ICA agreed with the circuit court, holding, inter alia, that, pursuant to the plain language of HAR §§ 11-200-26 and 11-200-27, a SEIS was required only where there was a substantial change in the “action,” see HAR § 11-200-26, and that, inasmuch as the defendants were not substantially changing the proposed expansion itself, no SEIS was required. Then-Associate Judge Nakamura dissented, asserting that, in his view, the relevant rules required the completion of a SEIS “when significant changes to the anticipated environmental impacts of a proposed action become apparent such that ‘an essentially different action’ is being proposed.” Unite Here!, 120 Hawai`i at 468, 209 P.3d at 1282.

On application, the plaintiffs urge this court to adopt Judge Nakamura’s view that HEPA mandates the completion of a SEIS where there has been a change in circumstances or increased environmental impacts and that, therefore, the DPP (the accepting agency for Kuilima’s subdivision application) should have required Kuilima to do so.

Oral arguments are December 17, 2009 at 9:00 a.m. As with most important land use and environmental cases, inversecondemnation's Robert Thomas has background and links to briefs.

The Kauai Onion

A new Kauai blog - topical with a satiric bent.

Harvard Law Review On The "Ceded Lands" Case

Inversecondemnation.com has a comment and a link to the article.

Something strikes me as amiss with yesterday’s fed court rejection of Jones Act challenge

Having posted a couple of minor remarks on this constitutional challenge to the Jones act, after reading that there was a decision I looked up the order to give it a quick read.

Under the federal Jones Act, all goods shipped between U.S. ports must be shipped on vessels built in the United States that are wholly owned by U.S. citizens and crewed by U.S. citizens. Plaintiffs call it protectionist and sued seeking, among other things, an injunction to suspend application of the Act on the theory that it causes the “people of the State of Hawaii” irreparable harm as a result of artificial high prices and restrictions on Hawaiian commerce in violation of the Commerce Clause of the U.S. Constitution.

The Federal District Court for the District of Hawaii dismissed the case, saying Plaintiffs lack standing because they failed to demonstrate that they actually suffered injury, and because their grievances were too “general.” I’m not a standing expert, but the court’s analysis seems reasonable.

However, the court also noted the standing requirement that the interest sought to be protected be within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. As the court said –

Where a plaintiff seeks to recover under a federal statute, he must also show that he falls within the category of persons for which that statute confers standing to bring suit. [citing] City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).

From this, the court reasoned – and I found this odd – that Plaintiffs lacked standing because “Plaintiffs’ stated interests appear entirely unrelated to the class of individuals Congress intended to protect with the Jones Act – seamen and ship owners and operators.”

But Plaintiffs didn’t bring suit under the Jones Act. Plaintiffs challenged the constitutionality of (part of) the Jones Act under the Commerce Clause of the federal Constitution. It seems to me that the court’s ‘zone of interest’ analysis is off the rails. The question isn’t what zone of interest the Jones Act guarantees. The question is what zone of interest the Commerce Clause guarantees. At least that’s my impression. Am I wrong? Somebody have a different take? Here's the order.

"It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it"

Hull v. Scruggs, 2 So.2d 543 (Miss. 1941), discussed here.

Law of the shoreline in Hawaii

My post last week, The many definitions of "shoreline", generated some good comments and debate so maybe there's interest in this short annotation on Hawaii shoreline law a friend emailed to me recently. I don't know its source and will update when I find out.

LAW OF THE SHORELINE IN HAWAI`I

1.0 HAWAI`I SUPREME COURT PRECEDENT
1.1 In re Ashford, 50 Haw. 314, 315, 440 P.2d 76, 77 (1968), the court ruled the term "ma ke kai" (along the sea) in royal land patents established the boundary of the shoreline according to the following terms: "along the upper reaches of the wash of the waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves." The court rejected an alternate interpretation of "mean high water," which would have located the shoreline more makai and would have left the shoreline under water much of the time. Id. at 314-15, 17 & n.4, 440 P.2d at 77-78 & n.4.

1.2 In County of Hawai`i v. Sotomura, 55 Haw. 176, 181-82, 517 P.2d 57, 61 (1973), the court recognized its Ashford decision as "a judicial recognition of longstanding public use of Hawaii’s beaches to an easily recognizable boundary that has ripened into a customary right." The court emphasized that "public policy, as interpreted by this court, favors extending to public use and ownership as much of Hawaii’s shoreline as is reasonably possible." Id. at 182, 517 P.2d at 61-62(emphasis added).

1.3 The court in Sotomura held that the circuit court correctly determined the shoreline to lie along "the upper reach of the wash of the waves," pursuant to Ashford. Id. However, the circuit court erred in locating the shoreline at the debris line, which lay more makai of the vegetation line. The supreme court held "as a matter of law that where the wash of the waves is marked by both a debris line and a vegetation line lying further mauka, the presumption is that the upper reaches of the wash of the waves over the course of a year lies along the line marking the edge of vegetation growth."Sotomura, 55 Haw. at 182, 517 P.2d at 62.

1.4 . The court further recognized that "land below the high water mark, like flowing water, is a natural resource owned by the state subject to, but in some sense in trust for the enjoyment of certain public rights" –- a concept commonly known as the "public trust doctrine." Id. at 183-84, 517 P.2d at 63. The court explained that it had long recognized the public trust doctrine and reaffirmed the doctrine’s foundational principle that the land below the shoreline "belongs to the State of Hawai`i." Id. at 184, 517 P.2d at 63.

1.5 In In re Sanborn, 57 Haw. 585, 589, 562 P.2d 771, 774 (1977), the court reiterated that "the law of general application in Hawaii is that the beachfront title lines run along the upper annual reaches of the waves, excluding storm and tidal waves." The court approved the lower court’s designation of the shoreline at the"vegetation and debris line," which marked "the ‘upper reaches of the wash of waves during ordinary high tide during the winter season, when the waves are further mauka (or inland) than the highest wash of waves during the summer season." Id. at 588, 562P.2d at 774.

[There is more below the break. Click here for the rest.]

Apparently there was a supreme court order in Kauai v. OIP?

The Garden Island ran an interesting follow-up yesterday on County of Kauai v. OIP in which the OIP had appealed to the state Supreme Court an ICA decision affirming the Fifth Circuit’s order that the minutes from County Council Executive Session 177 not be disclosed. (Here's the full procedural history). In the article, acting OIP Director Kathy Takase discusses a "two-page Supreme Court ruling, which was handed down Oct. 26 after oral arguments Aug. 10, reaffirm[ing] without further comment the Intermediate Court of Appeals Feb. 19 judgment."

Oddly, there seems to be no publicly available record of any Supreme Court ruling on the case - neither on the judiciary's online opinions and orders, nor on the proprietary online legal research data bases. Strange.

The article is a worthwhile read for anyone interested in the case, and Takase does a nice job of outlining the OIP's argument -

“It was our position that under the (Uniform Information Practices Act), the statute does not allow for an agency to sue OIP on a records issue, and the court actually analyzed it under the Sunshine Law for minutes,” she said. “We obviously feel that minutes are also records that are covered by the UIPA, so the UIPA’s provisions say when OIP decides a record should be disclosed, the agency shall disclose it.”

I wrote about the case soon after oral arguments were heard in the Supreme Court here.

This weekend's big North Shore surf

I drove up with the family for a look and took a couple of pics -

KC Lum loses 9th Cir. appeal

Here's the memorandum decision. And here's the Garden Island's coverage.

While the case was ostensibly an employment dispute, there has been broader interest in the outcome because part of the claims involved access to the infamous and controversial Kauai County Council Executive Session 177 minutes.

Recall that Executive Session 177 was 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 and the court found, among other things, that portions of the minutes protected by the attorney client privilege were so intertwined with other portions of the minutes that redaction would be impracticable. The ICA agreed and the case is currently before the state supreme court.

Bear in mind that the Lum case is completely different and separate from Kauai v. OIP, although both involve the same executive session minutes. Lum was no more successful than the OIP, however, and the 9th Circuit said -

Having reviewed the minutes in camera, we hold that the district court did not clearly err in affirming the magistrate judge’s order denying Lum’s motion to compel discovery of the Kauai County Council’s Executive Session 177 minutes. Lum relies on an opinion letter from the Hawaii Office of Information Practices (OIP) stating that only a limited portion of the minutes was covered by the attorney-client privilege. The magistrate judge could reasonably have disagreed with OIP’s review of the minutes or concluded that the privileged material was so intertwined with nonprivileged material that redaction would be ineffective.

The many definitions of "shoreline"

HawaiiOceanLaw.com has an interesting criticism of - or correction to - Joan Conrow's recent Honolulu Weekly article called "Shrinking Beaches," which begins:

When the Hawaii Supreme Court ruled three years ago that the public shoreline extends to the seasonally highest wash of the waves, many saw it as a sign that wealthy coastal landowners would no longer be allowed to extend their yards onto the beach.

HawiiOceanLaw.com points out that the article -

...conflates the certified shoreline and the property boundary between the State and the beachfront property owner. The distinction is important. The certified shoreline is merely the line from which setbacks are defined, for the purposes of the Coastal Zone Management Act...

This is true. The case Joan refers to, Diamond v. State of Hawai`i, Bd. of Land and Natural Res., 112 Hawai`i 161, 145 P.3d 704 (2006), didn't in fact rule that the public shoreline extends to the seasonally highest wash of the waves. Rather, Diamond dealt with the interpretation of the definition of "shoreline" in HRS § 205A-1 which the DLNR determines in order to establish setbacks within which structures are prohibited without a variance. It was way back in 1968 that the court established in In re Application of Ashford, 50 Haw. 314, 315, 440 P.2d 76, 77 (1968), that "the seaward boundary between private upland and public beach is "along the upper reaches of the wash of waves, . . . ."

The two definitions - the definition of setback for administrative purposes under § 205A, and for delineating property boundaries - are pretty much the same. But that doesn't diminish the importance of the distinction. While the BLNR has statutory authority to make "shoreline" determinations for setback purposes, it does not have authority or jurisdiction to establish property boundaries, which resides instead with the courts. An honest-to-goodness dispute between a property owner and the state (or the public) over a boundary of state land and private land at the shoreline would not be settled by a BLNR determination of the shoreline but would instead go to the courts. There, a BLNR determination might or might not be admissible as evidence, but even if admitted it would not be dispositive and the landowner could present evidence in support of a different shoreline finding.

That's probably partly what Office of Conservation and Coastal Lands administrator Sam Lemmo meant when he told Joan regarding disputes over the boundaries to which property owners are allowed to plant vegetation: “It’s not the easiest thing to enforce on.”

Hanalei boat tour operator wins summary judgment against county

I've been following the Garden Island's coverage of the Lady Ann boat tour case in which the county last June claimed the company lacked permits necessary to operate out of Michael Sheehan’s boat yard in Hanalei Bay. In August, the court denied the county’s motion for a preliminary injunction. Today, the paper reports that, in what appears to me to be a final judgment in the case -

Fifth Circuit Judge Kathleen Watanabe granted the tour-boat company’s request for summary judgment, injunctive relief and declaratory relief, allowing the company to continue operating summer boat tours out of Hanalei Bay.

Summary judgment is a pretrial determination which is granted when the court finds that, given the undisputed facts, the moving party is entitled to a judgment as a matter of law.

Native Hawaiian Legal Corp seeks to delay work on Kuhio Highway at Wailua

(Actually, NHLC represents a resident plaintiff who seeks to delay work at Wailua). According to the Garden Island -

The suit seeks [an] EIS; claims violation of state laws to protect known burial sites; claims state failure to identify constitutionally protected cultural rights (proper identification and protection of burial sites); and asks the court to order no ground disturbance in conjunction with the highway widening or undergrounding until the EIS and burial treatment plan are completed and approved.

Criminal conviction as evidence in a civil suit

If you have a burning curiosity about the evidentiary consequences of a criminal conviction to a subsequent civil case based on the same events that gave rise to the conviction, you're in luck.

Who should benefit when beaches grow by accretion?

...The state, or oceanfront landowners?

And does it affect your opinion that when beaches erode it is the oceanfront landowners who bear the loss?

Today's Star Bulletin provides some background on the question, which was the subject of oral arguments before the ICA back on Nov. 10. (Bay Beach Ohana 28 v. State of Hawaii, No. 28175).

Under Hawaii law, the beach makai of the statutorily defined shoreline is public. Obviously, shorelines do not remain static but move through erosion and accretion (mostly erosion, currently). Traditionally, a shoreline property owner's property increased or decreased with the natural movement of the shoreline. However, In 2003, the state adopted legislation that essentially claimed for the state naturally accreted shoreline land.

Landowners challenged the law as an unconstitutional taking of private property and won in the circuit court. The state has appealed.

Robert Thomas has been following the developments over at Inversecondemnation.com and provides background and links here and here. I stole the picture from one of his posts.