Friday Reading: SCOTUSblog's Shout-Out; 9th Circuit Says Church Bogarted Evidence In Cannabis Claim; Are Agencies To Blame For Telescope Delay?; WWII Guam Land Seizures Case Moves Forward

by Robert Thomas, Inverse Condemnation, April 8, 2016

Here's what we are reading today:

• Here's the equivalent of law blogger nirvana: a link to one of your pieces by SCOTUSblog: "There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts. In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”
• In Oklevyeha Native American Church of Hawaii, Inc. v. Lynch, No. 14-15143 (9th Cir. Apr. 6, 2016), a panel of the Ninth Circuit concluded that a Hawaii church which uses marijuana as part of its doctrine did not have a claim under RFRA to prevent it from being prosecuted under the Controlled Substances Act. The court held that the church was not forthcoming with evidence that the federal prohibition forced it to act contrary to its religious beliefs, which hold that weed is a substitute for peyote. Because it didn't show that peyote was not available, it doesn't have to choose between practicing its religion and obeying the law. And there's no requirement in doctrine for church members to use weed. "Nothing in the record indicates [the church] face[s] such a dilemma, because they have expressly told us that foregoing cannabis is not contrary to their religious beliefs." Slip op. at 8-9. Next case: look for the Church to amend its doctrine to require weed. I'm just sayin, man.
• In this piece, the editorial board of Honolulu Civil Beat asserts "The State Must Be Held Accountable On TMT Process." This editorial is in reaction to the Hawaii Supreme Court's recent opinion on the Thirty Meter Telescope, and argues, "[l]est any telescope supporter point the finger of blame at Native Hawaiian opponents, let’s be clear: This is a problem of the state’s own making." We can't agree totally. Yes, the court did rightly conclude unanimously that the State Board of Land and Natural Resources denied the objectors due process when it issued a conditional permit before it conducted the contested case hearing. But as we wrote here, agency incompetence or being driven by a desire to approve the project no matter what does not explain the entire picture as the Civil Beat piece argues. The editorial states, "[t]he whole affair is a classic example of state leaders cutting corners to ensure the outcome they want rather than trusting the legal process to yield the best result. Had the board simply followed usual — and legal — procedures in evaluating the permit application, it might well have ended up with a properly granted permit; and construction of the telescope might already be well underway." Not quite, in our view. First, make no mistake, the procedural objections raised were not the end goal, only the means (as such claims are in most cases), and the goal was always (and remains) to stop the project permanently. So the objectors will not be blameless should the TMT pack up and head for Chile or India instead. Second, the cart-before-the-horse process was most probably the result of the unclear and confusing procedures that agencies follow when a quasi-legislative body like the BLNR is required by Hawaii's administrative statutes and rules to switch hats midstream and transform into a quasi-judicial tribunal and afford anyone who wants to intervene with due process. Due Process is hardly a bad thing, but come on, you can't solely blame the agency for making what appears to be a good-faith effort to afford process while moving the TMT's application forward.        
• In Crawford v. Antonio B. Won Pat International Airport Auth., No. 15-000001 (D. Ct. Guam Mar. 31, 2016), the District Court of Guam (a federal court for the Territory under Article IV -- yes, and Article IV court) rejected the defendants' motion to dismiss a class action claim for the takings of ancestral lands. As this story notes, "[a]ncestral landowners in Guam  ... claim they were never fully compensated for property confiscated during World War II will have their day in court, a federal judge has ruled." A case to watch.

Enjoy the weekend.