April 2010

Whoa.  The legislative staff has been busy at the State Capitol. 

Last month, we reviewed H.B. 1808 which was pending before the Hawaii Legislature relating to the definition of shoreline that attempted to assist in the definition of the demarcation of property between the State and oceanfront landowners (earlier post here).

The bill has been revised and has passed the House.  Current version of H.B. 1808 is here.  (I have also subscribed to the Leg’s very cool feature which allows for status updates through RSS fee, hat tip to the Leg).

From the bill:

SECTION 1. The legislature finds that there are many shoreline areas throughout the state where the overgrowth of vegetation inhibits lateral access and transit along the beach, thereby denying the public of use and enjoyment of the public domain. The area seaward of’ the shoreline is part of the State’s conservation district and is regUlated by the department of land and natural resources. Although natural vegetative overgrowth exists along beach areas, there is also evidence in many areas of vegetative overgrowth into the beach area induced or cultivated by private property owners. The department does not have the funding nor should it be financially responsible for the removal of induced or cultivated vegetation by private landowners which interfere or encroach seaward of the shoreline.

The legislature further finds that beach transit corridors are similar to public sidewalks in the sense that they are for public use. To maintain beach transit along the shoreline, provisions similar to those  pertaining to the maintenance of sidewalks are needed when induced or cultivated vegetation interferes or encroaches into the beach transit corridor.

The purpose of this Act is to reaffirm a longstanding public policy of extending to public use and ownership as much of Hawaii’s shoreline as is reasonably possible by ensuring the public’s lateral access along the shoreline, by requiring the removal of the landowners’ induced or cultivated vegetation that interferes or encroaches seaward of the shoreline.

The bill also purports to criminalize the failure of a landowner to maintain vegetation that encroaches on the access areas. 

Interesting twist.  The bill defines says that land seaward of the property boundary is the beach transit corridor. And, provides:

However, in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit for the public along the shoreline below the private property lines, the counties by condemnation [shall] may establish along the makai boundaries of the property lines public transit corridors which shall be not less than six feet wide.

(b) Along beach transit corridors where the abutting landowner’s human-induced, enhanced, or unmaintained vegetation interferes or encroaches with beach transit corridors, the department of land and natural resources may require the abutting landowner to remove the landowner’s interfering or encroaching vegetation. “

So, the counties (which typically do not have an ownership stake in the shoreline) may condemn “along the makai boundaries” to make a corridor? 

Lot to digest with this bill. Stay tuned.

The Court of Appeals for the Second Circuit just published a decision that presents the question of what happens when two federal policies (protection of merchant seamen and preference for arbitration) run headlong into the other.  The policies are codified in the Jones Act (46 U.S.C. s. 688) and the Federal Arbitration Act (9 U.S.C.

Hawaii's Intermediate Court of Appeals just issued a Summary Disposition Order in a case involving landowner's rights and obligations in waters in a manmade waterway or ditch. The case is Ham Young v. Lee and is available here.

[Author's Note:  while the ocean, and the regulation and use of the ocean, is the thrust of this…

On Tuesday, President Obama issued an Executive Order relating to the Somalia piracy situation.  The Executive Order took effect immediately.  It purports to “block” payments, transfers or donations of property to several classes of individuals related to the crisis in Somalia.

The text of the Executive Order, the concurrently released message to Congress and the Annex are provided below.  When reviewing the legality of such an Executive Order, the starting point is to identify the statutory authorization for such an action.  As President Truman found out during the Korean War, the Executive Branch of the federal government is constitutionally constrained by its inability to legislate and any actions which purport to legislate are unconstitutional.  See Steel Seizure Case.

In this case, as you would expect, the President does have wide authority in the realm of international financial transactions and national defense.  See 50 U.S.C. s. 1702.  The maritime community is abuzz about this E.O. (hat tip to the Maritime Law Association of the U.S. for sending me the attached documents). Stay tuned.

The E.O. states:

I, BARACK OBAMA, President of the United States of America, find that the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have repeatedly been the subject of United Nations Security Council resolutions (including Resolution 1844 of November 20, 2008; Resolution 1846 of December 2, 2008; Resolution 1851 of December 16, 2008; and Resolution 1897 of November 30, 2009), and violations of the arms embargo imposed by the United Nations Security Council in Resolution 733 of January 23, 1992, and elaborated upon and amended by subsequent resolutions (including Resolution 1356 of June 19, 2001; Resolution 1725 of December 6, 2006; Resolution 1744 of February 20, 2007; Resolution 1772 of August 20, 2007; Resolution 1816 of June 2, 2008; and Resolution 1872 of May 26, 2009), constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

(i) the persons listed in the Annex to this order;

and

(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

(A) to have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia, including

but not limited to:

(1) acts that threaten the Djibouti Agreement of August 18, 2008, or the political process; or

(2) acts that threaten the Transitional Federal Institutions, the African Union Mission in Somalia (AMISOM), or other international peacekeeping operations related to Somalia;

(B) to have obstructed the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

(C) to have directly or indirectly supplied, sold, or transferred to Somalia, or to have been the recipient in the territory of Somalia of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to military activities;

(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the activities described in subsections (a)(ii)(A), (a)(ii)(B), or (a)(ii)(C) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) I hereby determine that, among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. (c) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the type of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to subsection (a) of this section would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations as provided by subsection (a) of this section.

(d) The prohibitions in subsection (a) of this section include but are not limited to:

(i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and

(ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

(e) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.

Sec. 3. For the purposes of this order:

(a) the term “person” means an individual or entity;

(b) the term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;

(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;

(d) the term “Transitional Federal Institutions” means the Transitional Federal Charter of the Somali Republic adopted in February 2004 and the Somali federal institutions established pursuant to such charter, and includes their agencies, instrumentalities, and controlled entities; and

(e) the term “African Union Mission in Somalia” means the mission authorized by the United Nations Security Council in Resolution 1744 of February 20, 2007, and reauthorized in subsequent resolutions, and includes its agencies, instrumentalities, and controlled entities.

Sec. 4. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.

Sec. 5. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.

Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).

Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.

Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 9. This order is effective at 12:01 a.m. eastern daylight time on April 13, 2010.

BARACK OBAMA

The White House issued a message to Congress re Somalia regarding this Executive Order and also published the Annex with the names of the individuals now “blocked.”

This is an interesting case that has been comprehensively covered by my partner, Robert Thomas, on his blog, www.inversecondemnation.com.  But, it is an important shoreline precedent and deserves mention here.

Simply put, can a shoreline property owner be liable, under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. s. 401, when structures that were lawful when constructed become unlawful (in trespass) through a property boundary that shifted shoreward through erosion? The Ninth Circuit opinion which answered that question, YES, is here.  The case is Sharp v. United States and this petition for Supreme Court review is certainly one to watch.

By way of factual background, aWashington shorefront property owner had erected a “shoreline defense structure” on then-dry land.  The land near the structure eroded and the structure then jutted out into now-tidelands.  Those tidelands were owned by the Lummi Indian Nation who, joined by the federal government, sued the property owner for trespass.

This case is the logical follow-on to another Rivers and Harbors case, United States v. Alameda Gateway, Ltd. 213 F.3d 1161 (2000)[Note: Robert rep’d landowner in that case].  In that case, the Ninth Circuit held:

Although § 10 does not explicitly mention the maintenance of structures in navigable waters, in the sense of keeping structures in place, we have interpreted the RHA as making unlawful the failure to remove structures prohibited by § 10, even if they were previously legal.

The problem with Alameda Gateway is that the statute prohibits the “creation of any obstruction” and “build or commence the building of any …bulkhead, jetty or other structure.”  44 U.S.C. s. 403.  The statute doesn’t say anything about failing to remove structures.

Lots here.  Still digesting, stay tuned for more posts.

 

New admiralty case from the First Circuit Court of Appeals.  Side note:  Justice David Souter participated in this panel by designation, following Justice Sandra Day O’Connor’s pattern of an active retirement.

This is a case about maritime lien asserted by a subcontractor whose materials were eventually installed on a vessel. The court did not allow the lien to…

New admiralty case from the Eleventh Circuit Court of Appeals.  Maritime attachment has certainly been in the news these days.  Well, in the admiralty news world anyway.  This case sets out the standard for vacating attachment, in an interesting (slow news day) case involving oil pipelines, unpaid divers, and Mexican District Attorneys.  The case is …

I am on the redeye to Los Angeles tonight, but wanted to get this news release posted.  Apparently, there has been some concerns about starting and finishing canoe regattas in the various harbors and the Coast Guard and State of Hawaii Department of Land and Natural Resources are crafting policy to address the issue.

The…