by Robert Thomas, www.InverseCondemnation.com October 4, 2011

Yes, you read that right.

Yesterday, we posted most of the amici briefs in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA's assertion that a portion of their land are "wetlands." But we saved one for a separate post, because it was worth noting on its own. The State of Hawaii has joined eight other states and signed onto the amici brief authored by Alaska, and this brief has a distinct property rights flavor to it.

As the Alaska Governor's press release ("Alaska Files Brief Supporting Property Rights") notes, the signatories are "supporting the right of property owners to have access to the courts for meaningful judicial review of arbitrary federal compliance orders." As regular readers of this blog surely must know, the Hawaii government isn't exactly known as being property rights friendly. And the other signatories to the brief (Alaska, Wyoming, South Carolina, Virginia, North Dakota, Nebraska, Arizona, Colorado, and Michigan) are not the reliably-blue-state crowd that Hawaii usually hangs out with on legal issues.

The Hawaii government filing a brief asking the Court to protect property rights? What up with that? Are pua’a sprouting wings?

We don't have the inside story, unfortunately. We suspect that it does not reflect a major shift in the long-prevailing regulatory philosophy of Hawaii's officials, but the more mundane case of the Alaska AG having asked his fellow AG's whether they would join his brief and some agreeing. And the State of Hawaii does own a lot of land, which we are sure it would like to control with as little unwarranted federal regulatory interference as possible.

Even if this does not foreshadow a sea change in Hawaii's regulatory climate, it still warmed the cockles of our hearts to see the State of Hawaii sign a brief recognizing that the EPA's position forces property owners nationwide into a no-win situation:

Without judicial review to determine the validity of a compliance order, the recipient of the order faces a "Hobson’s choice": either to comply with an order at the cost of significant development expenses and meaningful judicial review of the wetlands determination, or to decline to comply and risk significant civil, and possibly criminal, penalties. The States have a sovereign interest to protect their property interests. They also have a strong interest in protecting responsibly-conducted development for housing, infrastructure, and other purposes from overreaching federal regulation that is administered so zealously that it exceeds the objectives of the CWA.

Brief at 3-4. We also like this bit:

Precluding pre-enforcement judicial review buttresses a regime where EPA has assumed the authority to enjoin development by issuing unreviewable compliance orders. Such a result is repugnant to the core principle in the Due Process Clause that "[n]o person shall be deprived of life, liberty, or property, without due process of law."

Brief at 22. The states' amici brief is definitely worth a read.

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