hawaiioceanlaw.com

Bills at the Lege: Barrels, Boom, Unlimited Liability and Molasses

The Hawaii Legislature recently introduced several bills relating to the ocean environment and maritime industry here.  

First up, an increase in barrel tax from five cents per barrel to fifteen.  Follow it here.

Next, a requirement that barge-based fuel transfers use containment boom during transfer operations.  Follow it here.

And, the biggie, an amendment to Hawaii Revised Statutes Chapter 342D Water Pollution which provides for "unlimited liability" for any owner or operator of a vessel engaged in the commercial transport, storage on vessel or transfer of any "oil, hazardous substances, or unnatural or artificial substance" resulting from the spill or incurred by the State in responding to the release.  And, for those of you who learned a lot about the molasses trade in the past year, the bill defines "unnatural or artificial substance" as "the release of any substance in a quantity, duration, or form that disrupts or causes damage to the natural ecosystem of the ocean."

Finally, if you were wondering whether the State was going to proceed against Matson for the molasses spill, you should note that the Attorney General is seeking an emergency appropriation for hiring experts and outside counsel, for: "its impending lawsuit by the State against Matson for damages caused by the molasses spill in Honolulu Harbor."

Are Cruise Ships Public or Private Nuisances? S. Carolina SCT Says No Standing to Challenge

It is a rare day that my legal interests of zoning law and ocean governance are discussed in a single case, but thanks to the South Carolina Supreme Court, I must say:

 

The case is Carnival Corporation v. Historic Ansonborough Neighborhood Association and the original opinion can be found here.

In South Carolina, several citizen's groups and interested associations brought a suit against a cruise ship operator alleging nuisance and zoning violations and sought an injunction.  The groups complain about the use of Charleston's terminal to berth the Fantasy.  The groups alleged that the noise pollution and passenger operations disrupted the historic district where it berthed.

Carnival (and the municipal defendants) filed a motion to dismiss asserting that the plaintiffs failed to state a claim because they lack standing and that the cruise ship operations were not governed by the zoning ordinances asserted.  

Strangely, before the trial court decided the motion, the case was transferred to the South Carolina Supreme Court, invoking the court's original jurisdiction.    That court ordered a special referee to conduct a hearing and then make a recommendation on the motion to dismiss.

The court, reviewing the special referee's recommendation, found that the plaintiffs lacked standing to assert any of the claims brought.  The court found that the plaintiffs claimed only generalized grievances and not particularized harm, which is fatal to a party's standing to proceed.  All of the environmental impacts, traffic, smokestacks, soot, zoning, other environmental laws are suffered by the public at large and are not particular to any one person or group.  [Under S. Carolina law, typically the State itself makes these claims].

As to the zoning claims, S. Carolina law did provide for standing for violations of zoning ordinances, but only for adjacent property owners.  Added to the lack of particular damage to any person or group, the court found standing lacking to make these claims.

The court concludes by imploring the plaintiffs to seek redress elsewhere:

In our constitutional system of government with its separation of powers, courts exercise the limited constitutional function of the "judicial power." S.C. Const. art. V, § 1. Accordingly, courts are limited to resolving cases and the powers inherent in that function. Courts are not bodies for the resolution of public policy and generalized grievances. Harms suffered by the public at large, like those Plaintiffs allege here, are to be remedied by the legislative and executive branches. If existing laws and regulations or their enforcement fail to protect the public from harm, it is incumbent upon the public to seek reform through their elected officials or failing that, at the ballot box.

Sound advice.

Hawaii Real Estate Litigation - 2013 Cases of Note

Late last year, I was invited to speak on real estate litigation to the Hawaii State Bar Association's Real Property and Financial Services Section.  My partner Greg Kugle and I moderated a panel with guest speakers and we hit on several cases with impact in Hawaii.  They are below with links.

Land Court Update - Huelo Hui, Campbell

Real Estate Contract Interpretation Update - Kutkowski v. Princeville 

Land Use/Development Litigation - Hoku Lele, Kauai Beach Villas .

Condo/timeshare Update- Roaring Lion, Waikoloa

Interests in Real Estate - Suppa (easements), Kanahele (jt tenancy), Childs v. Harada (easement)

Premises liability – Winfrey v. GGP, LLC

Administrative Law – Pavsek v. Sandvold

Inverse Condemnation – Leone v. County of Maui

For materials on two cases pending at the Hawaii Supreme Court, especially Kellberg and Kauai Springs, go to www.inversecondemnation.com.

National Cases with Potential Impacts in Hawaii

Supreme Court Update – Koontz v. St. Johns River Water Management District

Zoning Law Update –  Inclusionary Zoning

                        California Building Industry Ass’n v. City of San Jose

                        City and County of Honolulu Considers Increasing Affordable Housing Reqmt

                        Good policy? UHERO report says maybe not.

Regulatory Takings Update - Lockaway Storage v. County of Alameda

 

Hawaii State Bar - Probate Manual Presentation

Today, I was part of a panel presenting the 2014 HSBA Probate Forms Manual.  I updated the chapter on contested matters, including transfer of matters from probate to civil calendar, alternative dispute resolution and appeals.

Joining my presentation was co-author and Damon Key alum, Courtney Kajikawa.  This isn't a video, but is audio, so please enjoy.