Surfrider Defends North Shore at Hawaii Supreme Court

Yesterday the Hawaii Supreme Court heard very important oral argument in the matter of Unite Here! Local 5, et al. v. City and County of Honolulu, et al., 120 Hawaii 457, 209 P.3d 12171 (2009), regarding plaintiff’s efforts to obtain a Supplemental Environmental Impact Statement to evaluate changed circumstances and intensity of environmental impacts. Alongside several other Hawaii environmental groups, the Surfrider Foundation has submitted an amicus brief to the Hawaii state Supreme Court in support of Keep North Shore Country and Sierra Club's case opposing Turtle Bay Resort eight-fold expansion. The obsolete 1985 EIS failed to reassess traffic concerns and endangered species protections for the past 25 years. Surfrider Foundation was fortunate to have Earthjustice Attorney, Isaac Moriwake, representing us in the “friend of the court” capacity to expertly argue the significance of the traffic and species concerns, which should be fully accounted for through Hawaii state environmental laws. Isaac reported that the oral argument went well yesterday and we are hopeful for a friendly verdict.

The Supreme Court reviewed a split 2-1 decision made by the State Intermediate Court of Appeals (ICA), which denied the plaintiff's request for an updated review of the proposed development's environmental and community impacts. The ICA majority held that no supplemental EIS would ever be required unless the "project itself" changed. According to this intermediate court ruling, there is the possibility that no amount of time would be adequate to require a new environmental analysis. Turtle Bay’s 1985 EIS could remain valid for hundreds of years, even if there are major hurricanes, drastic shoreline erosion, or significant changes to the community in the area.

According to the Sierra Club press release, "Much has changed in the last two decades, most notably the rapid growth in traffic congestion along the narrow, two-lane Kamehameha Highway, the only regional roadway on the North Shore," said Gil Riviere, President of Keep the North Shore Country. "The expansion plan is extremely unpopular due to concerns of over-development of the rural area, traffic gridlock, new environmental concerns such as endangered monk seals pupping on the resort property, and the likelihood of disturbing ancient Hawaiian burials."

“The purpose of an EIS is to ensure decision makers have the necessary information about the human and environmental impacts of a proposed project,” said Robert D. Harris, Director of the Sierra Club, Hawai`i Chapter. “This lets the community be involved in the process and ensures smart decisions are made,” he continued. “Plainly, we cannot rely upon obsolete information to approve a project that is clearly no longer appropriate for the community.”

Surfrider members who attended the hearing yesterday reported that the oral argument and subsequent rally went a long way in showing support for defending Oahu's beautiful North Shore coastline and coastal commmunity. For more information, see today’s online article. Additionally, a recording of the oral argument should be posted shortly here. The final decision on the case is likely to come out in 2-6 months. We hope that the Hawaii Supreme Court sees the need for constant environmental review and vigilance, along with the need to clarify the strength of the Hawaii Environmental Policy Act.

Surfrider Foundation Legal Handbook - Now Published Online

Surfrider Foundation's Legal Handbook is now published and available online. This handbook is an informational resource intended to enable Surfrider members to understand the law as it pertains to Surfrider campaigns. The Legal Handbook also explains how you can engage in legal issues and environmental advocacy as a Surfrider Chapter or a public citizen. The 100 page manual covers the following:

Chapter 1: Surfrider Litigation Program
Chapter 2: Environmental Advocacy (including testimony at public hearings, standing issues for litigation and FOIA)
Chapter 3: Water Quality (including the Clean Water Act)
Chapter 4: Beach Access (including the Public Trust Doctrine)
Chapter 5: Coastal Development and Land Use
Chapter 6: Beach Preservation

Why It Matters: Citizen involvement in monitoring and reporting pollution and beach access violations are key to protection and preservation of the oceans and beaches that we love. In order to become further involved, it may become important to know the law surrounding these issues. A proactive citizen will want to know the legal standards that government and industry must abide by, at what point violations occur, and perhaps, when the laws should be changed.

The Case of the Problematic Hot Dog Stand

Yesterday's hour-long U.S. Supreme Court hearing on the Florida Department of Environmental Protection v. Stop the Beach Renourishment beach access case afforded a lively debate, including hypothetical scenarios of hot dog stands and spring breakers and enlightening discussion of case law. The case centered around the private oceanfront property owners right to exclude the public from the sandy beach in front of their houses after the state had filled that beach with taxpayer-bought sand.

Justice Sotomayor poignantly highlighted the shaky arguments of the private homeowners, including the tenuous fears of unwanted hot dog vendor who may perturb the sanctity of the sandy beach. Sotomayor pointed out that the hot dog vendor could still sell hot dogs on the beach up to the mean high tide line (or "standing in a foot of water") regardless of the property owners rights based on the public's rights under the Public Trust Doctrine. Her point in bringing up the hot dog vendor in the water was to show that the only right that the property owners are complaining about, with respect to unwanted vendors, is the right to incrementally move the hot dog vendor away from their homes in the case that the beach is accreting. Both Justices Breyer and Sotomayor seemed more sympathetic to the state’s beach renourishment program and its public access goals. Justices Roberts and Alito seemed to side with the private homeowner’s fears of noisy hot dog stands.

Somewhat surprisingly, Justice Scalia, a known supporter for invoking the takings clause, seemed somewhat neutral and inquisitive of the homeowners' motivations. Scalia thought the state's action could be a “good deal” for the private property owners given the erosion control value of the new sand. However, Justice Roberts turned this argument around to say that the value of erosion control could be factored in as a deduction from the "just compensation" given in return for a state purchase of the property.

Additionally, the Justices seemed interested in examining the uncharted concept of a "judicial taking," which would be when an act of the judiciary constitutes an unconstitutional taking of property. The Justices posed the hypothetical of an elected judge who campaigned on the plan of overturning a takings law. If the judge won, and ruled in favor of a "takings" it would presumably be a judicial takings versus a "legislative takings" which is done through an enacted law.

As for the rights of accretions and contact, most of the Justices were not clear on how they interpreted Florida case law, except Scalia who stated that the Sand Key decision was a good application of common law that the right of contact with the mean high water line is inherent in the right of access. Other than Scalia, none of the Justices seemed to reveal whether they felt that the rights of accretion and contact were either taken or existed in the first place.

From the line of questioning presented by the Supreme Court Justices yesterday, most attorneys and scholars have speculated that the decision will likely result in a 4-4 split among the Justices. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.

Prior to oral arguments, Surfrider Foundation submitted a brief of amicus curiae to the Supreme Court, which sought to persuade the Highest Court that Florida’s beach management program does not take littoral rights from property owners because accretion and contact are not absolute littoral rights and as a result the beach regulations were not unconstitutionally applied nor was the Florida Supreme Court’s decision a “Judicial Takings.”

The final written decision will likely be released before the end of the term in June.

Transcripts from the oral argument are available online.

Some important vocabulary if you are reading the caselaw or hearing transcript:
Avulsion – an abrupt change in the course or channel of a water boundary with land, resulting in the loss or addition of land. The sudden and perceptible nature of this change distinguishes avulsion from accretion.
Accretion – the adding on or adhering of something to property, usually gradual and imperceptible addition of sediment to shore by action of the water
Littoral rights – refers to “rights concerning properties abutting the ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore.
Reliction – the gradual and imperceptible withdrawal of water from land by lowering of the surface water level