September 2009

This afternoon, the Interagency Ocean Policy Task Force will hold a regional meeting in Honolulu at 1:30.  I will attend and will live-tweet at twitter.com/hawaiioceanlaw.

Per the Council of Environmental Quality, the Task Force's purpose is:

To engage the public in and take public comment on the work of the Ocean Policy Task Force. On June 12th, President Obama charged the Task Force with developing a recommended national policy that ensures protection, maintenance, and restoration of oceans, our coasts, and the Great Lakes as well as a recommend framework for improved stewardship, within 90 days. On September 17th, the Task Force released its interim report on this phase of its work and released it 30-days of public comment. Comments may be posted at www.whitehouse.gov/oceans.

The President also asked the Task Force to develop a framework for effective coastal and marine spatial planning within the next 90 days. As the Task Force is now focusing its work on marine and coastal spatial planning and it would especially benefit from comments relating to that issue.

TASK FORCE MEMBERS EXPECTED TO ATTEND:

Chair Nancy Sutley, White House Council on Environmental Quality (via satellite) 

Dr. Jane Lubchenco, Administrator, National Oceanic and Atmospheric Administration 

Adm. Thad Allen, U.S. Coast Guard Commandant (via satellite)

Dr. Wendy Wiltse, Pacific Island Office, EPA Region 9

Rear Adm. Manson Brown, Commander, Coast Guard Fourteenth District

Ms. Eileen Sobeck, Deputy Assistant Secretary for Fish, Wildlife and Parks (via satellite)

Rear Admiral Michael A. Giorgione, Civil Engineer Corps, United States Navy Commander, Naval Facilities Engineering Command Pacific and Pacific Fleet Civil Engineer

PRELIMINARY AGENDA:

  • Chair Nancy Sutley, White House Council on Environmental Quality
  • Welcome from Local Representative (TBD)
  • Background of Interagency Ocean Policy Task Force, Agenda for Public Meeting, Introduction of Task Force Members (10 minutes)
  • Task Force members

EXPERT PANELS (45 minutes)

  • Indigenous Perspectives on Science and Conservation: Kahu M. Kalani Souza, Executive Director, Olohana Foundation
  • Partnerships and Governance: Lelei Peau, Deputy Director, American Samoa Dept. of Commerce
  • Water Quality and Marine Debris: Marvin Heskett, Director, TestAmerica; former co-chair, Surfrider Foundation
  • Preservation and Conservation of Marine Resources: Dr. Charles Birkeland, Adjunct Associate Professor, Department of Zoology, University of Hawaii
  • Transportation and Tourism: Glenn Hong, CEO, Young Brothers Barges
  • Sustainable Fisheries and Aquaculture: Randy Cates, President/CEO, Cates International
  • Climate and Hazard Resilience: Dr. Katherine Courtney, Tetra Tech EMI
  • Research and Environmental Biology: Dr. Jo-Ann Leong, Director, Hawaii Institute of Marine Biology

PUBLIC COMMENT (2 hours)

  • Sam Pooley, Director, NOAA Pacific Islands Fisheries Science Center Director, will moderate

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.

Please excuse a departure from my regular blog topics for this post. 

Last February, I was fortunate to attend a private screening of an upcoming film entitled, Barbarian Princess.  The movie was so well done, I feel compelled to publish my praise for the cinematic achievement.

My general comments:  this movie is a rare treat. …

The Ocean Policy Task Force will hold a meeting in Honolulu on September 29, 2009.  The Coast Guard flyer has specifics.

Obama Administration officials will hold an Ocean Policy Task Force PublicMeeting in the Pacific Islands on Tuesday, September 29, 2009.

The Interagency Ocean Policy Task Force, led by White House Council on Environmental Quality Chair Nancy Sutley, consists of senior-level officials from Administration agencies, departments, and offices. The Task Force, established by President Obama via presidential memorandum on June 12, is charged with developing a recommendation for a national policy that ensures protection, maintenance, and restoration of oceans, our coasts and the Great Lakes. It will also recommend a framework for improved stewardship, and effective coastal and marine spatial planning. The meeting in the Pacific Islands will be the fourth regional public meeting held since the Task Force was created. The public is encouraged to attend and an opportunity for public comment will be provided.

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.

The City and County of Honolulu is considering a bill that would ban shark tour operations, at least the shoreside businesses related to such operations.  The text of the bill provides:

SECTION 1.  Findings and purpose.  The council finds that the oceans are used by city residents and visitors for numerous aquatic activities, including fishing, boating, swimming, surfing, canoe paddling, and snorkeling.  The council further finds that sharks have great cultural, historical, and spiritual significance for many Native Hawaiians.  The council believes that shark tours, the practice of charging residents and visitors to venture into ocean waters to view sharks attracted by fish feeding, raises public safety concerns for ocean users, is disrespectful of Hawaiian culture, alters the natural behavior and distribution of sharks, and may be disruptive of ocean ecology and the natural environment.  The purpose of this ordinance is to ban shark tour operations.

Chapter 40, Revised Ordinances of Honolulu 1990, (“Prohibited Activities in the City”) is amended by adding a new article to be appropriately designated by the revisor of ordinances and to read as follows:

Article ___. Shark Tour Operations Sec. 40-__.1

Definitions

As used in this article:

“Fish feeding” means to introduce or attempt to introduce into the ocean water any food or other substance for consumption by fish.

“Shark tour operations” means the maintenance of an office, the collection of a fee or other financial consideration, the distribution, marketing, or advertising of tickets for sale, or the conduct of any other business activity conducted by a person for the purpose of enabling customers to venture into ocean waters to view sharks attracted by fish feeding; provided that this term does not include educational or cultural expeditions or endeavors for which a fee is not required.

Prohibition. It is unlawful for any person to engage in shark tour operations.

Violation—Penalty. Any person who violates this article shall be fined not more than $1,000 or imprisoned not more than one year or both.”

This ordinance shall take effect upon its approval.

My earlier posts on Maui County’s ban can be found here.

Today, Robert Thomas, Tred Eyerly and I filed an amicus brief on behalf of the Owners’ Counsel of America supporting the Petitioner in the Florida Shoreline Case. 

Our brief is here.

The Questions Presented to the U.S. Supreme Court is:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Our brief highlights three legal points:

First, the definition of “property,” while largely left up to the states to craft, does include some universal normative principles which are protected by the federal Constitution.  Among these are the right to exclude others and, in this case, the right of littoral landowners to accreted land.

Second, when a state supreme court changes the definition of “property” to the owner’s detriment, a “taking” of property can occur.  Absent the provision of just compensation, the remedy for such action should be the invalidation of the state supreme court’s decision.

Finally, in the areas of shoreline boundaries, custom and public trust, state supreme courts have re-wrote the rules of property without compensating the landowners.  We provided our analysis of the Robinson litigation in Hawaii, the Sotomura litigation in Hawaii, the State ex rel. Thornton v. Hay case (462 P.2d 671 (Or. 1969)) from Oregon, the PASH case from Hawaii and the Matthews v. Bay Head Imp. Ass’n. (471 A.2d 355 (N.J. 1984))case from New Jersey.

One to watch.  Interesting issues of interplay between state laws and the federal Constitution.  This case is especially important in Hawaii where shoreline issues, in terms of ownership and access, are particularly thorny.