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Does Appellate Oral Argument Matter? You Bet

It's a frequent question: does appellate oral argument really matter?

We've always harbored the belief that it does in some cases, and if you have any doubts, look no further than today's Ninth Circuit opinion in Nordyke v. King, No. 07-15763 (June 1, 2012), where the en banc court essentially concluded that the issue (whether a county ordinance that makes it a crime to possess a firearm at the County Fairgrounds violates the Second Amendment rights of gun show exhibitors) was moot because the county's attorney at oral argument informed the court that the county now interpreted the ordinance to prohibit only "actual possession" of a gun, and not to bar display of a "properly secured firearm," and that subject to this limitation, gun shows can take place at the fairgrounds. Under that interpretation, the ordinance does not ban guns and is only a reasonable regulation.

Three judges concurred, noting:

Twelve years into this appeal, the County of Alameda now represents that its ordinance presents no barrier to conducting gun shows on its property. Contrary to its previous assertions, the County now concedes that such an event can be held with firearms present and available for meaningful physical inspection by potential buyers.1

The County’s sweeping concessions—made at oral argument before the en banc court—change the game and make this a far different case from the one argued before the three-judge panel.

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1. Having made these concessions, the County is bound to them. Should the County at any time fail to apply the ordinance as it represented it at oral argument, Plaintiffs may of course bring suit. Kreisner v. City of San Diego, 1 F.3d 775, 787 n.8, 789 n.10 (9th Cir. 1993). And, of course, if we have misinterpreted the County’s representations, either party may file a petition for rehearing. See Fed. R. App. P. 35.

All this begs the question of why it took "twelve years" of appeals for the County to finally concede that gun shows are indeed allowed on County property, but there you have it.

Tuesday Round-Up

What we're reading today:

• The Hawaii Supreme Court: A Legacy for Gov. Neil Abercrombie? - from Civil Beat ("[Governor Neil] Abercrombie, who himself turns 74 next month, has the opportunity to make an impact on Hawaii that will outlive his administration — to have an 'Abercrombie court.'").

• Public gets to vet judicial hopefuls - an editorial from the Honolulu Star-Advertiser ("Last November, Circuit Judge Karl Sakamoto ruled in favor of the Star-Advertiser in a Freedom of Information Act lawsuit seeking the governor's release of the commission's list of judicial candidates. Only then, and belatedly, did Abercrombie release names of candidates for Circuit Court judgeships and for a vacancy on the state Supreme Court, which emerged when former Gov. Linda Lingle promoted then-Associate Justice Mark Recktenwald to chief justice. By then, the state Senate had already confirmed Abercrombie nominee Sabrina McKenna to the high court."). Disclosure: we represented the S-A in the case mentioned - more here.

• Update on the Berkeley Hillside Case - the California Supreme Court will review Berkeley Hillside Preservation v. City of Berkeley, the case dealing with "significant effects" and categorical exemptions under CEQA - via the Abbott and Kindermann Land Use Law Blog.

• Filarsky v. Delia: A New Supreme Court Private Individual Immunity Decison - a summary of the case from lawprof Sheldon Nahmod. Disclosure: we filed an amicus brief in the case in support of the attorney who claimed qualified immunity. 

• Land Use Rules Have Prevented Four Million People From Moving to the Bay Area -  from the PropertyProf Blog.

Guest Post: Update On The Federal Court Challenge To The Honolulu Rail Project

Back in December, our old friend and colleague Paul Schwind gave us the details on the federal litigation challenging the $4+ billion Honolulu rail project, Honolulutraffic.com v. Federal Transit Admin, No. 11-00307 AWT (D. Haw. filed May 11, 2011) (all of the relevant legal documents are posted here on the Honolulutraffic.com web site). Paul has graciously agreed to update us with the latest developments in the case.

Update on the Federal Court Challenge to the Honolulu High Capacity Transit Corridor Project (The Rail)

by Paul J. Schwind*

Litigation continues over the adequacy of the final environmental impact statement (FEIS) for Honolulu’s rail rapid transit project. Supporters of rail got a bit of a boost recently in Hawaii District Court when Ninth Circuit Judge A. Wallace Tashima (assigned to hear the case because the entire District of Hawaii federal bench recused itself) granted most of the motions for partial summary judgement filed by the Defendants Federal Transportation Administration, the U.S. Department of Transportation, and the City and County of Honolulu. But the court’s ruling may contain a "poison pill" as a result of one part of the Defendants’ pleadings.

As last reported here, on November 30, 2011 Judge Tashima took under advisement the Defendants’ motion for partial judgment on the pleadings, noting that before the facts of the case could be decided, the full administrative record must be produced. On December 12, 2011 Judge Tashima issued an Order on Motion for Partial Judgment on the Pleadings denying the Defendants’ motion as premature on those grounds.

The Defendants then produced the administrative record, whereupon in February 2012, the City filed new and separate motions for partial summary judgment challenging the Plaintiffs’ standing to bring claims under section 4(f) at particular sites, and arguing that they waived the claims. "Section 4(f)" refers to section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c), which provides that the Secretary of Transportation may approve a transportation program or project requiring the use of a publicly owned park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance, only if there is no prudent and feasible alternative to using that land; and the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

The court's Order on Defendants’ Motions for Partial Summary Judgment (May 17, 2012), begins by noting that the Plaintiffs had already ceded their section 4(f) claims as to four sites (Pacific War Memorial, Hawaii Employers Council Building, DOT Harbors Division Building, and Tamura Building). The order disallows standing as to these four sites and one other site (Makalapa Navy Housing Historic District) because the Plaintiffs failed to mention them at any point in their testimony supporting their claim to standing. The court concluded that site-specific standing is required to bring each section 4(f) claim, citing Davis v. Fed. Election Conn’n, 554 U.S. 724, 734 (2008) (plaintiff must demonstrate standing for each claim he seeks to press); Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 531-33 (9th Cir. 1994) (plaintiffs could not challenge a "no use" determination for eight particular section 4(f) sites on appeal, because they did not raise challenges regarding those specific sites before the district court); and Piedmont Envtl. Council v. U.S. Dep’t of Transp., 58 F. App’x 20, 24 (4th Cir. 2003) (because plaintiffs’ declarations did not mention two sites, plaintiffs failed to show that they would suffer any actual and imminent direct injury with respect to those properties). 

The order also held that the Plaintiffs failed to demonstrate any injury in fact as to two other sites (Ke`ehi Lagoon Park and Queen Street Park), because Hawaii’s Thousand Friends Executive Director Donna Wong provided evidence only of "some day" or "vague" intention to use the two parks in the future, rather than specific mention of regular use or concrete plans for future use. To demonstrate standing to sue, an environmental plaintiff must demonstrate: (1) an injury in fact that is actual or imminent, and concrete and particularized; (2) a causal connection between that injury and the conduct challenged; and (3) a likelihood that the injury will be redressed by a decision favorable to plaintiff. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 & n.1 (1992); see also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (a mere intention to visit national forests would be adequate to confer standing to challenge any government action as to those forests only if the requirement of concrete, particularized injury in fact were eliminated). 

On those grounds, Judge Tashima concluded his analysis of standing by finding that only HTF member Michelle Matson, who frequents and enjoys downtown public parks (including Mother Waldron Park) and intends to continue doing so, provided sufficient evidence of tangible and repeated use of that site to establish standing.  Accordingly, the court granted the City’s motion for summary judgment as to the Plaintiffs’ lack of standing to bring section 4(f) claims as to two of the park sites, but not for Mother Waldron Park, for which the court denied summary judgment.

The order turned to the City’s second motion for summary judgment on waiver for failure to exhaust administrative remedies. The court began by noting that, because of its rulings on the first motion as to standing, the dispute over waiver of claims had now narrowed to only two section 4(f) sites (Pearl Harbor National Historic Landmark and Merchant Street Historic District). The order reviewed the legal standards set forth in Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978), Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 764-65 (2004), and Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006) in support of the proposition that before their claims can be considered in federal court, the plaintiffs must have participated in the administrative process to show the possible significance of agency error and to ensure that the agency has the opportunity to bring its expertise to bear to resolve the claims.

The court agreed with the Defendants that exhaustion principles apply in the section 4(f) context. Judicial review of section 4(f) is governed by the Administrative Procedures Act (see N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008)). Moreover, the Ninth Circuit has applied exhaustion principles quite expansively, and comments in general terms are enough (see Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010)). But although the exhaustion requirement should be interpreted broadly, the issue must be raised with sufficient clarity for the decision maker to understand and rule on the issue (see Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1065 (9th Cir. 2010)). On the other hand, even if the Plaintiffs did not sufficiently comment on the two sites in question, their claims might not be waived if the FEIS’ flaws were "so obvious" that there was no need for a commenter to point them out specifically (see Public Citizen, 541 U.S. at 765. If the agency had "independent knowledge" of the issues that concerned the Plaintiffs, then the "so obvious" exception would allow the Plaintiffs to bring a claim that they did not exhaust because they need only show that the agency was aware of the problem, not that the agency explicitly recognized the problem’s existence (see Barnes v. United States, 655 F.3d 1124, 1132-34 (9th Cir. 2011)).

In this case, however, Judge Tashima found that, with respect to the Pearl Harbor National Historic Landmark, Hawaii’s Thousand Friends did not suggest that it was concerned about any specific negative impact of the rail project, and the Defendants could show that they specifically responded to concerns of other non-party agencies for that site. With respect to the Merchant Street Historic District (which includes Mother Waldron Park), the court concluded that none of the Plaintiffs’ comments addressed the District by name, and therefore did not raise any issue of "use" with sufficient clarity that the agency could bring its expertise to bear to resolve the claim. Further, the Defendants’ notes indicated they tried to address public comments regarding the District, and thus could not be said to have had "independent knowledge" of issues to which they did not respond. 

Accordingly, the court granted the City’s motion for summary judgment, and held that the Plaintiffs waived their seciton 4(f) claims as to Pearl Harbor National Historic Landmark and Merchant Street Historic District for failure to exhaust administrative remedies. However, because the Defendants made a catch-all request for summary judgment as to any section 4(f) claims involving sites not specifically identified by the Plaintiffs during the administrative proceedings, the court denied summary judgment as to such sites not specifically identified by the Plaintiffs during the notice-and-comment process and not specified by name in the City’s motion. The court reasoned that there was insufficient evidence to determine whether such section 4(f) claims, concerning unnamed sites, could be saved by the "so obvious" exception to the exhaustion requirement. However, this ruling may have created a loophole through which the Plaintiffs can still jam a monkey wrench into the rail project, if they can persuade the court to reopen the FEIS to address previously unspecified claims regarding previously unnamed sites.

Shortly after filing its memoranda in opposition to the City’s motions for partial summary judgment, the Plaintiffs filed their own motion for summary judgment, and the briefing on that motion is still in progress. A hearing on the cross-motions for summary judgment is set for August 21, 2012, at 10:00 a.m. before Judge Tashima, and we will report on the hearing at a later date.

It remains to be seen how the Court will dispose of the counts of the First Amended Complaint now that, at least with respect to section 4(f) concerns, the case appears to have been narrowed to one site (Mother Waldron Park). Unless, of course, the Plaintiffs are granted leave to raise previously unspecified claims regarding previously unnamed sites.

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*voluntarily inactive member of the Hawaii Bar

Obama Administration's Amicus Brief: Deny Cert To Case Challenging Property Tax Exemptions For Hawaiian Homestead Lessees

The federal government has filed its invitation brief in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the cert petition asking the U.S. Supreme Court to review the Hawaii Supreme Court's dismissal of a challenge to the property tax exemptons conferred on lessees of Hawaiian Homesteads.

Only "native Hawaiians" are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions. The petitioners are not "native Hawaiians" and thus are not lessees, and paid their property taxes under protest. When they sought refunds in the Hawaii Tax Appeals Court and argued that they should also be exempt, that court concluded that "native Hawaiian" was not a racial classification and did not review the tax exemption with strict scrutiny. Instead, the court upheld the exemption under rational basis review. The Hawaii Supreme Court vacated the Tax Court decision and dismissed for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians). Even though they are not eligible as a matter of law, the court held that in order to bring a lawsuit challenging their ineligibility, they needed to have applied for a lease (and been denied).

The cert petition argues that the refund claimants have standing, and that the Equal Protection Clause prohibits state and local tax exemptions that are "available only to members of a certain race." The State of Hawaii's Brief in Opposition argues that the these are questions of state law, and that the Court should not grant cert.

The case was scheduled for the Court's conference on December 12, 2011, but the Court postponed consideration of the case and invited the Obama Administration to weigh in with a brief, because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. When federal laws are so questioned, the federal government is required to be notified, and it may file a brief in the case. The petitioners did, but the Solicitor General's office did not weigh.

As a result of the Supreme Court's invitation (such "invitations" are never declined!), it now has, and the feds have strongly supported the State in arguing that the standing questions are matters purely of Hawaii law, and the Hawaii Supreme Court's dismissal is grounded in "independent and adquate" state law, meaning that it is immune from Supreme Court review under Michigan v. Long, 463 U.S. 1032 (1983). The SG's brief also argues alternatively that if federal standing law is applied, the petitioners are alleging only "taxpayer standing" and not an individualized injury. Finally, the brief argues that whether the rule of Rice v. Cayetano, 528 US. 495 (2000) is applicable should be left for a future case. Perhaps the most interesting parts of the SG's brief are its recitation of Hawaii history (pages 1 - 3), and its noting of "recent and ongoing legal developments" (the State's recent legislation instituting a "process for the indigenous native people of Hawaii to reorganize as a sovereign government"). 

Here is the Court's docket entry. We will bring you more if additional briefs are filed, and when the case is put back on the Court's conference calendar.

Brief for the United States as Amicus Curiae, Corboy v. Louie, No. 11-336 (filed May 25, 2012)

HAWSCT Oral Argument Recap - Who Defines The "Project" For Archaeological Review?

Earlier today, the Hawaii Supreme Court heard oral argument in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a "phased" or segment-by-segment basis. (A preview and briefs are posted here.)

As we wrote earlier today in our post-argument summary, it does not look good for the City and the State.

If you want to listen to the arguments, stream the recording here:

Or you can download it here.

Hawaii law requires that the government must undertake a survey and consult with persons who are descendants of "iwi kupuna" (Native Hawaiian buried remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be located in the latter phases of the rail project before it turned the first shovel of dirt in the first phase. The City and the State argue that their agencies have the discretion to define the scope of the project, and were within that discretion when they broke up the 20 mile rail project into four pieces, and may evaluate the final phase after beginning work on the first phase. The circuit court didn't think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the archaeological reviews.

As we noted earlier, a majority of the jurists hearing the case today seemed quite skeptical of those arguments. The arguments had a different flavor than usual, because one of the Court's more active questioners, Justice Simeon Acoba, was recused (along with Justice James Duffy), and two circuit court judges -- R. Mark Browning and  Fa`auuga To`oto`o -- were assigned in their places. But the bench was still "hot," with Associate Justice Sabrina McKenna leading the charge in casting doubt on the position staked out by the City and the State. Her questioning at times verged on a cross-examination of counsel, and appeared to be highly skeptical of the arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to "segment" or "phase" it.

Circuit Judge Browning asked perhaps the most pointed question of the day when he challenged the City's attorney's claim that the rail project poses no "actual threat" to burials since the City can undertake mitigation measures if and when they are discovered. "How do you know there's no actual threat unless you've first studied it?" The City's lawyer didn't really have a clear and definitive answer to that question, and that response was, in our view, revealing. Chief Justice Recktenwald also seemed to accept the challengers' argument that the administrative regulations envision a linear process -- one in which construction only follows complete data gathering and vetting -- and he said he could not quite understand how the City would "get around the plain language of the rules."

There was some argument on the standing issue (how could a descendant whose iwi are allegedly in the Kakaako phase attempt to stop construction of the Kapolei phase), but we predict that this question will be mostly academic. The court has not been terribly bothered by standing issues in the past, especially where environmental and Native Hawaiian plaintiffs are concerned, and as a consequence, their lawyers rightly treat standing as more of a pleading requirement than an actual limitation on the court's jurisdiction. We'd be surprised if that were not true in this case as well.

It's always risky to predict the outcome of appellate arguments based on the questions from the bench, but it appears to us that the appellants have gone a long way in convincing at least three members of the court (Justices Nakayama and McKenna, and Judge Browning) of their arguments, and that the Chief Justice is also inclined to view the government's ability to define the rail project as a series of four discrete segments with very little deference.

The one point that was left unaddressed was remedy. If the court agrees with the challengers, then what next?  We have to assume that the court will not lightly halt in its tracks (sorry, could not resist the bad pun) the most massive public works project in the State's history, although it has not hesitated in the past to put the kibosh on big projects, even if they are already underway (see the Superferry case, for example). We sense that this case is different because it is a purely governmental project and not one being pushed by a private entity, like the Superferry, and that the court must be acutely aware that the rail is not only the biggest project in memory, but also a political football of sorts, and is shaping up as the key issue in the ongoing mayoral campaign. We're not sure how to square a determination that the government needed to evaluate the entire project before starting, with the fact that it already has started. Is it a case of "let justice be done, though the heavens fall?"

We doubt it, since that would mean that construction of the rail project (20 miles away, as noted by the State's counsel) must be stopped while the archaeological studies for the downtown phase are completed.  The challengers have asked for an injunction pending appeal, but that issue was not raised or discussed at all in today's arguments. If the court agrees with the challenges, we predict that it will require a supplemental archaeological study, and let construction continue. The City and State lawyers both acknowledged, after all, that if such a study were to discover significant archaeological resources in the path of the project, mitigation measures, including possible realignment of the rail footprint, would need to be done.

Finally, here's some things about appellate advocacy we learned today:

• When the Chief Justice asks an advocate a question that could be answered with a "yes" or a "no," it's probably better to begin your answer with a "Yes, Chief Justice," or "No, Chief Justice," and then follow with your explanation. Because if you don't, and you simply launch into your explanation, by the time you complete it, you may have forgotten to give the Chief the direct answer, and he will then follow up with "Counsel, is that a 'yes' or a 'no'?"

• We like appellate oral arguments that begin with "May it please the Court." Just sayin.

• Sometimes, the best way to approach rebuttal argument is to say "unless the Court has any further questions that I can address, we are prepared to waive the remainder of our time." Quit while you are ahead.

Stay tuned. Due to the public nature of the case and the issues involved, we predict a decision sooner than later. 

The Real "Descendants" Plays Out In The Hawaii Supreme Court - Honolulu's $4+ Billion Rail Project In Grave Danger

As of 10:00 a.m., the $4+ billion Honolulu rail project is officially in jeopardy.

Update: full report on the oral arguments here.

The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and it does not look good for the City and the State. The court's majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to "segment" or "phase" it, and thereby put off evaluation of the entire project's possible impact of burials. 

In the film "The Descendants," George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title. Hawaii law requires that the government consult with persons who are descendants of "iwi kupuna" (Native Hawaiian remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be located in the latter phases of the rail project before it turned the first shovel of dirt in the first phase. The heart of the case is whether the City and State have the discretion to define the scope of the project, and can decide to break it up into pieces, rather than evaluate the entire Kapolei-to-Ala Moana route.

As Deputy State Attorney General William Wynhoff argued, it was reasonable and practical for the agencies to conclude (along with the trial court) that the possible presence of burials in Kakaako should not hamper construction going on twenty miles away in Kapolei. That may be true, but the Hawaii Supreme Court has in the past not been swayed by arguments about practicality (see the Superferry case, for example), and is especially skeptical of agencies' claims that they get to define the scope of their own authority (see Superferry and other cases), especially when environmental plaintiffs or Native Hawaiians are making the claim.

The court was active in its questioning, and particularly skeptical of the City's and the State's arguments. Circuit Judge Mark Browning, sitting by designation for the recused Justice Acoba, asked perhaps the most difficult question when he challenged the private attorney representing the City who argued that there was no actual threat to burials since the City can undertake mitigation measures, or can even move the rail alignment should they be discovered: "How do you know there's no actual threat," Judge Browning asked, "unless you've studied it?"

The City's lawyer was hard pressed to answer that question. It appears that at least three of the Justices (Nakayama, McKenna, and Judge Browning) are inclined to view the government's ability to define the rail project as a series of four discrete segments with very little deference.

More to follow, including a more detailed run-down of the arguments.

Iowa: Close Relationship Needed For Consolidating Eminent Domain Actions

In Johnson v. Des Moines Metropolitan Wastewater Reclamation Authority, No. 11-0444 (May 18, 2012), the Iowa Supreme Court held that two separate condemnation cases should not have been consolidated even though each case involved the taking of part of the same parent tract of land from the same landowner. The court concluded that these facts alone were not enough, and that other considerations demonstrated that the cases should be heard separately:

• different condemnors were taking the parcels - the court rejected the owner's claim that the taking authorities were "similar"

• the takings were instituted four months apart

• different reasons supported each condemnation (one was for a street relocation and to support a nearby airport, while the other was for a sewer connection)

The court rejected the trial court's determination that the fact the property owner was using the same expert witnesses in both cases created "common issues of fact of law," and instead concluded that hearing the cases together would allow the jury considering one taking to improperly consider evidence from the other taking that would not otherwise be admissible. For example, the court feared that a limiting instruction to not treat the value in Case #1 as a comparable in valuing Case #2 might be disregarded by the jury.

The property owner argued that the combined affect of multiple takings in a short period of time reduced the value of the remaining land more than valuing each separately using the before-and-after method, and thus a single jury should hear the cases. The court rejected the argument, concluding that it was "speculative -- indeed [the owner] could benefit from inconsistent verdicts." Slip op. at 12.

Our thanks to R. Michael Hayes for sending this opinion our way.

New(er) Eminent Domain Law Blog Worth Following

Check this out: my Owners' Counsel of America colleague Kevin E. Anderson has a blog on eminent domain and related issues, forcusing on decisions from the Utah state and federal courts, Eminent Domain Review.

It's not a new blog (Kevin has been posting since at least 2011), but it's new to us, so we though we would pass it along to you.

Among the categories he covers are the latest cases from the Utah Supreme Court, just compensation issues, and regulatory takings.

We're subscribing, and so should you.

Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?

In a big development project such as the $4+ billion Honolulu rail, must environmental review under state law be undertaken taking into account the entire project, or can it be done on a segment-by-segment basis?

That's the question the Hawaii Supreme Court will consider this Thursday, May 24, 2012, when it hears oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611. The circuit court didn't think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the environmental reviews (the alleged impact of the the project on archaeological sites, including burials).

Here's the short description from the Judiciary web site:

Kaleikini argues that the Honolulu High-Capacity Transit Corridor Project should be enjoined because the Programmatic Agreement and Final Environmental Impact Statement for the project permitted a "phased approach" to the required archeological inventory survey (AIS), rather than requiring that an AIS for all four phases of the project be completed prior to approval and commencement of the project. Kaleikini argues that the phased approach to the AIS violates HRS chapters 6E, 343, and 205A. In response, the City and State defendants argue that a phased approach is legally permissible.

Here are the merits briefs, and the briefs addressing the plaintiffs-appellants' separate request for an injunction pending appeal. First, the merits briefs:

• Opening Brief

• State's Answering Brief

• City's Answering Brief

• Appellant's Reply to State's Brief

• Appellant's Reply to City's Brief

Here's the briefs on the request for injunctive relief on appeal:

• Appellants' Motion for Injunction Pending Appeal

• State's Opposition

• City's Opposition

This case was transferred by the Supreme Court from the Intermediate Court of Appeals (a process in which the Supreme Court moves a case from the ICA to the Supreme Court, thus skipping the usual ICA-followed-by-cert procedures). Both Justice Acoba and Justice Duffy are recused, and two circuit judges are sitting by designation in their places, so this could get interesting just for that fact alone.

We will attend the arguments and have a report (no live blog this time).

Hawaii Reapportionment Case: Motion For Preliminary Injunction Denied

Here's the order, just issued by the three-judge district court denying the motion for preliminary injunction. More to come.

Order Denying Plaintiffs Motion for Preliminary Injunction, Kostick v. Nago

Colorado: Company Lacks Eminent Domain Power To Construct Gas Pipeline

In Larson v. Sinclair Transp. Co., No 09SC966 (May 21, 2012), the Colorado Supreme Court held that a state statute does not grant a company such as Sinclair the ability to take property for the construction of petroleum pipelines.

The statute, Colorado Rev. Stat § 38-5-105, is not exactly elegant in its wording:

Such telegraph, telephone, electric light power, gas, or pipeline company or such city or town is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof. Whenever such company or such city or town is unable to secure by deed, contract, or agreement such rights-of-way for such purposes over, under, across, and upon the lands, property, privileges, rights-of-way, or easements of persons or corporations, it shall be lawful for such telegraph, telephone, electric light power, gas, or pipeline company or any city or town owning electric power producing or distribution facilities to acquire such title in the manner now provided by law for the exercise of the right of eminent domain and in the manner as set forth in this article.

 

Sinclair owned easements across private land allowing it to run an underground gas pipe, but it wanted a second one. After negotiations with the property owner failed, Sinclair attempted to condemn the easement. Both the trial court and the court of appeals concluded it had the authority to do so.

The Colorado Supreme Court reversed, and held that the statute "intended to authorize condemnation for the construction of electric power infrastructure." Slip op. at 5. The court started by applying the narrow rule of construction applicable to eminent domain statutes, which are generally construed against the condemnor, especially in circumstances such as these where the power is delegated to a private entity. The court rejected the argument that the phrase "pipeline company" covered Sinclair since it is company and it "conveys petroleum products through its pipelines." Slip op. at 6. 

That would seem to address the issue, no? Isn't a company that relies on pipelines a "pipeline company?" While the court of appeals thought so, the Supreme Court held that the statute contains no definition, but other language in the statute shows that the only companies vested with condemnation power are electric companies ("..and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems..."). Neighboring statutes also reveal that the power was only meant for electric companies, and "neither the word petroleum nor the word oil is found anywhere in Article 5 of Title 38." Slip op. at 7.

There's a lot of verbiage in the opinion devoted to how to read a statute, and a long dissent disputing the court's conclusion, relying mainly on legislative history as support. Read them if you are interested. But one question remains: Colorado law seems to have provisions expressly granting all sorts of private entitites eminent domain power for certain purposes, so why doesn't it have anything allowing petroleum pipelines?

Maybe is should. But it currently doesn't, and that was all the court needed to know. 

Larson v. Sinclair Transp. Co., No. 09SC966 (Colorado May 21, 2012)

Amicus Brief: Federal Takings Claims And State Law Claims ... Ehh, What's The Difference?

We couldn't post much last week due to a pressing engagement on Friday before a three-judge federal district court (the case challenging Hawaii's latest state reapportionment plan on Equal Protection grounds in which we represent the plaintiffs -- more here). But the court took the matter under submission, so while we are awaiting a ruling we can clear off some of the backlog of items.

First, you will recall R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here, in which the Third Circuit held that a property owner did not actually or impliedly litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court.

Apparently, a property owner even having a chance of vindicating its federal constitutional rights in federal court is such an affront to the order of the universe that the Redevelopment Authority found it necessary ask the Supreme Court to review the case (cert petition here). Now comes the International Municipal Lawyers Association, which has filed this amicus brief supporting cert. Here is IMLA's summary of its brief's argument.

We found the most interesting aspect of the brief was not its claim that the Third Circuit got Pennsylvania preclusion law wrong, or that letting its decision stand might threaten to "chill" redevelopment (the Constitutional requirements of doing a taking right and paying just compensation can be, after all, such inconveniences), but its assumption that state takings claims are really just federal claims in substance, and that "takings" claims are the same whether brought in federal or state court. It seems to us that instead of promoting "the principles of preclusion, comity, and federalism," (see Br. at 5), that an assumption that state law and state courts simply adhere to the incomprehensible Penn Central test has the opposite effect. And that even if state courts do apply a Penn Central analysis, they are doing so as a matter of state law, and not some baseline federal constitutional requirement, and that a federal court should not be bound by preclusion principles in such a case.

Ninth Circuit Judicial Conference In Hawaii Might Cost What?

At least according to this story.

Fifth Circuit: Williamson County Ripeness Does Not Bar Due Process Claim In Federal Court

Update: the latest in the latest Williamson County-related cert petition here.

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If you tried to explain the practical results of Williamson County's ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking.

As we've explained many times, under Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County's rationale was that there is no violation of the Fifth Amendment by a state or local government unless and until the property owner could both show that there was a taking, and that the state had denied compensation.  So, you see, you have to lose your state takings claim to ripen your federal takings claim.

Williamson County gets particularly bizarre when courts extend it beyond the takings clause, since what thin justification exists for the rule is grounded in the language of the Fifth Amendment. Yet, the lower federal courts regularly apply it to Equal Protection and Due Process Claims, somehow transforming Williamson County from a limited takings requirement to a full-blown bar to the federal courthouse door for any plaintiff alleging a property-related claim. See River Park, Inc. v. Country Club Estates, Ltd., 23 F.3d 164, 167 (7th Cir. 1994) (substantive due process subject to Williamson County's state litigation requirement); Covington Court Ltd. v. Village of Oak Brook, 77 F.3d 177, 179 (7th Cir. 1996) (due process); Bateman v. City of West Bountiful, 89 F.3d 704, 709 (10th Cir. 1996) (due process and equal protection claims subject to Williamson County). For a particularly weird angle, see Braun v. Ann Arbor Township, 519 F.3d 564 (6th Cir. 2008), which concluded that all of the property owner's federal claims were "takings" claims (even though they sought different relief), and whacked the plaintiff's equal protection and due process claims along with its takings claim.

Well, in Bowlby v. City of Aberdeen, No. 11-60279 (May 14, 2012), the U.S. Court of Appeals for the Fifth Circuit provided a different view, and injected a modicum of reality into the strange world of  Williamson County. We won't go too far into the case's details, except to say that the plaintiff had a business permit, which the City summarily revoked. She sued in federal court for a taking and for procedural due process and equal protection violations, and the court promptly dismissed her complaint under Williamson County. She did not pursue an appeal of the takings dismissal, but asserted that Williamson County's state litigation requirement of that case did not require dismissal of the due process or equal protection claim. See this post by Pacific Legal Foundation for more background.

The Fifth Circuit reversed, concluding that Williamson County is applicable only to takings claims, and not due process or equal protection claims:

In Bowlby’s case, however, her business permits were definitively taken away. While it is possible that, had she appealed to the mayor or Board of Alderman, she may have regained her permits, the actual taking is "irreversible," unlike the application of a regulation. ... More importantly, under this Court’s precedents, a procedural due process claim that is brought concurrently with a takings claim, such as Bowlby’s, should be analyzed not under the principles of Williamson County, but according to "general ripeness principles."

Slip op. at 10-11. Read the entire opinion. You will appreciate it.

HAWSCT Continues To Grapple With What Qualifies As "A Constitutionally Protected Customary Or Traditional Native Hawaiian Practice"

Update: Ben Lowenthal provides his analysis of the opinions here.

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The Hawaii Constitution gives Native Hawaiians -- those who can trace their ancestry to inhabitants of Hawaii prior to western contact -- a privilege to engage in "customary or traditional practices" that, in some cases, immunizes them when others who lack that one drop of Hawaiian blood would be liable. See Haw. Const. art. XII, § 7. For example, in some cases where a native Hawaiian enters land he or she does not have the right to access, the constitutional privilege may excuse liability for civil or criminal trespass. The only limit on the privilege in the text of the constitution is "the right of the State to regulate such rights."

The constitution also does not define what activites might qualify as "traditional and customary practices," and the question has vexed Hawaii courts since the Supreme Court first gave teeth to the right in 1982 in Kalipi v. Hawaiian Trust Co., Ltd., 656 P.2d 745 (Haw. 1982). In State v. Hanapi, 970 P.2d 485 (Haw. 1998), the court settled on a three-part test that really didn't help much, since the second part of the test required that the claimed right must be "constitutionally protected as a customary or traditional native Hawaiian practice," a tautology that folds back on itself.

In State v. Pratt, No. 27897 (May 11, 2012), the Hawaii Supreme Court delved into the doctrine yet again. Although it did not clarify what activities qualify for the privilege, it did settle one outstanding issue, that should be of interest to landowners, both public and private. Read on.

The case involved a native Hawaiian who was convicted of illegally camping without a permit in a state park on Kauai. He admitted the elements of the crime but claimed that his presence in the park and his activites there were protected under the privilege. The prosecution conceded that his activities qualified as customary or traditional practices, but argued that the State's "right to regulate" overcame Pratt's claim of privilege. The trial court concluded that the State's interest in preserving the park outweighed Pratt's right to exercise his native rights.

The three-judge court of appeals panel produced three opinions, and affirmed the conviction 2-1. One judge concluded it was the defendant's burden to show the State's regulation was not reasonable. Another judge also concluded that a defendant bears the burden, but only of showing that his own conduct was reasonable. The third judge placed the burden on the State to prove the defendant's conduct resulted in actual harm.

The three-Justice Supreme Court majority adopted none of these approaches, but concluded the analysis must be "case by case," and a balancing test considering the "totality of the circumstances." Applying this test, the majority affirmed the conviction because the State's interest in controlling access to the park outweighed Pratt's interest in exercising his native rights.

The court may have resolved Pratt's case, but did it make the doctrine any clearer? After all, what does a "case by case" and "totality of the circumstances" rule mean for future cases, other than there is no rule? As we noted above, however, the Supreme Court's opinion did clear up one thing. The majority suggested the defendant bears the burden by stating that Pratt did not show that his activities were conducted "within the limit of state law." Slip op. at 30. Meaning what, exactly? That he should have asked the State whether he could engage in his practices? We're not sure why Pratt would do that when he claimed his conduct was exempt from even seeking a camping permit. Nonetheless, it does seem that the burden is squarely a defendant's, and the state's regulations will be reviewed on a rational basis standard.

Finally, we still do not have a real firm idea of what actions qualify as "traditional and customary practices" since here, the prosecution accepted that Pratt's activities qualified, and neither the court of appeals nor the Supreme Court delved into that issue. Maybe next time.

State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)