hawaiioceanlaw.com

Ninth Circuit Decides Aboriginal Fishing Rights on Outer Continental Shelf

The Ninth Circuit just issued a decision in a case arising from an aboriginal claim of fishing rights off the coast of Alaska.   The en banc decision denied the claim of aboriginal fishing rights with a mildly stinging dissent.  The case is Native Village of Eyak v. Blank, and it can be downloaded here.

First off, editorial note.  I'm not a judge, but in fishing cases, I think it makes sense to the readers of the world to avoid fishing metaphors.  "Even those the Villages don't contest those findings, the dissent goes on a [wait for it....] fishing expedition through the trial record and testimony to make its own factual findings."

Federal law recognizes that aboriginal rights can exist absent any treaty or statute.  In order to prevail on a claim for such rights, the proof required is that the right was "actual, exclusive, and continuous use and occupancy 'for a long time'."  Most first year law students will recognize the elements of an adverse possession claim.  Interesting to see its applicability to an ocean setting.  It is a big ocean after all.

The trial court reviewed the villages proof that for thousands of years, their ancestors used the Outer Continental Shelf for fishing and hunting grounds.  The trial court and the majority accepted that such use was made of these marine areas, but found that the villages use was not "exclusive." 

As such, the majority held that the Villages claims failed.

Judge W. Fletcher dissented (and was joined by four other judges).  Perhaps not impressed with the resounding dismissal of his analysis of the law, Judge Fletcher said, "the majority misstates the law and misreads plain English."  The dissent thought that there was enough evidence that these fishing rights were exercised on at least part of the claimed marine area, warranting a trial to determine those areas.

Land Use, Shorelines, Substantive Due Process....Oh My

It isn't often my day job doing land use and condemnation litigation overlaps with my maritime interests, but the Ninth Circuit just published a decision that comes awfully close.

The case is Samson v. City of Bainbridge Island and the opinion can be found here.

The facts: the City of Bainbridge Island issued a moratorium on building piers that a property owner sought to build. The property owner battled the City in state courts finally obtaining a judgment that the moratorium violated the Washington constitution. During the pendency of that litigation, the City passed a permanent prohibition on the construction of piers and docks. The property owners filed a civil rights lawsuit in state court and the City removed the suit to federal court. There, the City prevailed on a summary judgment motion.

The Ninth Circuit affirmed the decision, but peppered the decision with language that it was sympathetic to the property owners' plight. 

Substantive Due Process: the property owner asserted that the moratorium constituted a substantive due process violation. The first inquiry: what is the property right being impacted by the offending governmental conduct? The City contended that the right was merely the "abstract need or desire"to build a single use dock. The owners contended that the right to build a dock was a "vested right" which, under Washington law, gives owners the vested right to have their building permit applications governed by the then-existing law governing such applications. The court did not resolve this issue because it found that even if there were a cognizable property interest at stake, the moratorium did not infringe upon it.

As the Samsons conceded, the moratorium did not impinge on their fundamental right. See Jackson Water Works, Inc. v. Pub. Utils. Comm’n, 793 F.2d 1090, 1093 (9th Cir. 1986) (noting that government action that “affects only economic” interests does not implicate fundamental rights). “The Supreme Court has ‘long eschewed . . . heightened [means-ends] scrutiny when addressing substantive due process challenges to government regulation’ that does not impinge on fundamental rights.” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (alterations in original) (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545 (2005)). Hence, to establish a substantive due process violation, the Samsons must show that Bainbridge’s ordinances establishing and extending the moratorium were “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994) (internal quotation marks omitted). The ordinances are “presumed valid, and this presumption is overcome only by a clear showing of arbitrariness and irrationality.” Id. (internal quotation marks omitted). The Samsons have not met this “exceedingly high burden.” Shanks, 540 F.3d at 1088 (internal quotation marks omitted).

The Court found that the moratorium was in the government interest to avoid the flood of applicants that foreshadow a change in governmental regulation.  The City's aim to avoid owners "vesting" was legitimate and that the City's action was not "arbitrary".

Procedural Due Process:  the property owners also brought a procedural due process challenge to the moratorium, alleging it was passed without any hearing.  The Ninth Circuit found that the moratorium was a "legislative act" and there was no evidence that it was targeted to any property owner.

Procedural due process entitles citizens to a legislative body that “performs its responsibilities in the normal manner prescribed by law.” Id. at 1260 (internal quotation mark omitted). The Bainbridge City Council hewed to its ordinary protocols when it passed the moratorium ordinances. The Samsons’ rights were thus “protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915).

The court concluded: 

It is surely vexing to the Samsons that they and their co-plaintiffs successfully challenged the moratorium in state court, but received no damages for their efforts. And it must be more vexing still that they won the battle, but lost the war: the state courts struck down the temporary moratorium, but upheld the permanent ban on shoreline development. But the federal courts do not exist to satisfy litigants who are unhappy with what they received in state court. Nor do they exist to second-guess the manner in which city officials promote the public welfare.

Cold solace indeed.

APEC 2011 - Security Zones Draw Some Interesting Comments

One nice feature of the digital age is that it increases transparency in government. 

The "docket" for the APEC 2011 Security Zones, as created by the U.S. Coast Guard, has the ability to submit public comments.

Comments so far discuss the impact of the Waikiki security zone on beachgoers, surf schools and the like.

 

APEC 2011 - Waterside Security Zones

I've obtained graphics from www.regulations.gov and have included them below.  The Ala Wai canal one is the old version.  The regulation states that the zone continues to the northeast side of the McCully bridge.

Ocean side Waikiki:

Koolina:

APEC 2011 Security Zones - Graphic Released by Coast Guard

 

More on the Proposed Monk Seal Critical Habitat - Civil Beat Article

Civil Beat had a great article in today's edition on the proposed designation of critical habitat for the Monk Seal (for more on the regulation, see my earlier post here). 

 
Photo courtesy of NOAA.

Sophie Cocke does a great job outlining the proposed habitat designation and then identifying the issues associated with the rulemaking. To date, the monk seal critical habitat was limited to the uninhabited Northwestern Hawaiian Islands.  This proposed rule brings the habitat to the Main Hawaiian Islands:

Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation).

Stay tuned. 

New Cert Petition from 9th Circuit - Submerged Lands Act - Pacific Merchant Shipping Association v. James Goldstene

Among the cases in my queue awaiting my analysis is Pacific Merchant Shipping Association v. Goldstene, which can be downloaded here.  It relates to the Submerged Lands Act and whether it preempts state regulation of marine fuels.  Not a simple topic to blog about, hence Apparently a Petition for a Writ of Certiorari was filed and it made SCOTUSBLOG's Petition of the Day.

What are the boundaries of State regulation?

This case involves the State of California's attempt to regulate the types of fuels ships use off the California coast.  There was an earlier iteration of the case, posted in 2008, here where California tried to regulate ship emissions offshore.  The Ninth Circuit found those regulations to be preempted by the Clean Air Act.

In response, in 2009, the California Air Resources Board passed regulations requiring ocean-going vessels to use cleaner marine fuels.  The requirement applied within 24 nautical miles of the state's shoreline. [My federalism alarm bell just started ringing.] The Pacific Merchant Shipping Association challenged the regulations and lost its motion for summary judgment and appealed.  The Ninth Circuit affirmed the denial of summary judgment and PMSA is now seeking Supreme Court review.

Acknowledging that when federal statutes collide with the overarching federalism and preemption principles embodied in the Constitution, it is a tough call:

This appeal presents the Court with a highly unusual and challenging set of circumstances. Given the circumstances, we do believe that the regulatory scheme at issue here pushes a state’s legal authority to its very limits, although the state had clear justifications for doing so. More generally, we must take into account such fundamental considerations as, on the one hand, the supremacy of federal law, the various limitations on state regulations arising out of the dormant Commerce Clause and general maritime law preemption doctrines, and the federal government’s unquestioned authority over this nation’s relations with foreign countries, and, on the other hand, the sovereign police powers retained by California allowing the state to adopt a wide range of laws in order to protect the health, safety, and welfare of its own residents.

I'll end now and digest this case more as the briefs come in.

Feds Hold Public Hearings for Critical Habitat Designation for Monk Seals

The National Marine Fisheries Service is holding a series of public meetings to discuss its proposed rule regarding Hawaiian Monk Seal critical habitat.  The proposed rule is here.  The rule's background is:

In the notice of the proposed rulemaking, we propose to revise the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) by extending the current designation in the Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth contour and including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation). We propose to exclude the following areas from designation because the national security benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species: Kingfisher Underwater Training area in marine areas off the northeast coast of Niihau; Pacific Missile Range Facility Main Base at Barking Sands, Kauai; Pacific Missile Range Facility Offshore Areas in marine areas off the western coast of Kauai; the Naval Defensive Sea Area and Puuloa Underwater Training Range in marine areas outside Pearl Harbor, Oahu; and the Shallow Water Minefield Sonar Training Range off the western coast of Kahoolawe in the Maui Nui area. In addition we are soliciting comments on all aspects of the proposal, including information on the economic, national security, and other relevant impacts. We will consider additional information received prior to making a final decision on critical habitat designation.

The schedule for the hearings is:

Moloka’i
Monday, August 8 5:30-8 pm
Mitchell Pauole Center
90 Ainoa Street
Kaunakakai, HI 96748

Maui
Tuesday, August 9 5:30-8 pm
Kihei Community Center
303 E. Lipoa St.
Kihei, HI 96753

Kaua’i
Wednesday, August 10 5:30-8 pm
Kaua’i War Memorial Convention Hall
4191 Hardy St., Exhibit Hall B
Lihu’e, HI 96766

O’ahu
Thursday, August 11 5:30-8 pm
McCoy Pavilion at Ala Moana Park
1201 Ala Moana Blvd.
Honolulu, HI 96814

Hawai’i
Monday, August 15 5:30-8 pm
Mokupapapa Discovery Center
308 Kamehameha Ave., 109
Hilo, HI 96720

Tuesday, August 16 6:30-9 pm
Kahakai Elementary School
76-147 Royal Poinciana Drive
Kailua Kona, HI 96740

Written comments must be received before August 31, 2011 or you can submit them at www.regulations.gov. 

Presidents and Vacation Rentals in Hawaii

Interesting article on CivilBeat today with a Honolulu City Zoning Inspector stating that President Obama's stay at a Kailua beachfront home violated City zoning ordinances.

Robert Thomas has an in-depth perspective on this issue over at www.inversecondemnation.com.  The Zoning Board of Appeals and the City's official position differ with the zoning inspector's opinion about the illegality of vacation rentals for less than a month occupancy.  And, they didn't mind the first time he stayed there.

Stay tuned.

 

Just Published in the Vermont Law Review - Of Woodchucks and Prune Yards

The Vermont Law Review has published an article authored by me and my Damon Key colleagues (and fellow law bloggers) Robert H. Thomas and Tred Eyerly, Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010)(Download here)

Our introduction is a reference to Justice Scalia's quip in mid-opinion about pondering imponderables.

Justice BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.