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Thursday, October 06,
2011

State
of Hawaii to SCOTUS: Protect Property Rights
from "Overreaching Federal
Regulation"
By Robert Thomas :: 359
Views :: Hawaii
State News, Hawaii
State Politics, National
News, National
Politics

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.

---30---

By Hawaii Free Press @ Friday, October 07, 2011
4:51 PM

Comments from the following blog
entry: October
7, 2011 News Read, located at: http://hawaiifreepress.com/ArticlesDailyNews/tabid/65/articleType/ArticleView/articleId/5204/October-7-2011-News-Read.aspx

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