Entries for 'Robert Thomas'

In County of Hawaii v. Ala Loop Homeowners, (July 9, 2010), the Hawaii Supreme Court held that certain state zoning laws are "environmental" laws that may be enforced by private plaintiffs. The court held "[w]e further conclude that article XI, section 9 of the Hawai'i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case."

The State argues: ...the Court has made new law that will significantly affect multiple sectors of our community, all levels of state and county government, and countless administrative and judicial proceedings that are pending in the courts and before state and county land use and environmental regulatory agencies." 

This case did not garner the broad public interest of the Superferry litigation, but the case could be more important. The core issue in the case was whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't.

This case challenged the State's title to the ceded lands because the federal government's title, which it transferred to the state at statehood was somehow less than absolute. That argument has now been put to rest: the federal government had "absolute fee" title to the lands ceded to it by the Republic of Hawaii. Statehood is "a uniquely sovereign" event, and means something.

Environmental and community-action groups such as the Sierra Club and Maui Tomorrow now find themselves in the crosshairs of many residents frustrated by recent developments with the Hawaii Superferry.

At first, it was a bit odd to see Washington, D.C. attorney Kannon Shanmugam, counsel for the Office of Hawaiian Affairs in the "ceded lands" case immediately concede in oral argument that the U.S. Supreme Court should rule against OHA -- and hold the Apology Resolution was simply a symbolic statement of regret -- if the Hawaii Supreme Court's decision relied on it.

The predicament OHA finds itself in is one almost entirely of its own making. Its unusual U.S. Supreme Court strategy was made necessary by its overwhelming victory in the Hawaii Supreme Court (the court ruled unanimously against the State), where it argued successfully that the Apology Resolution provided all of the answers. But in prevailing on that basis, OHA opened the door to the state and federal government's arguments which -- if accepted by a majority of the Supreme Court -- at the very least will shift the venue for resolution of land claims from OHA's preferred forum, state courts, to the political branches of state government.