Honolulu Mayor's State of Rail Transit Speech

Honolulu Mayor Mufi Hannemann made his, "State of Rail Transit," speech on October 29, 2009 at the Mission Memorial Auditorium.  His official speech, in its entirety, can be found at www.honolulu.gov/mayor/stateoftherailtransit102909.pdf.

The project is a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and Ala Moana Center. The system features 21 stations and electric, steel-wheel trains capable of carrying more than 300 passengers each. (See www.honolulutransit.org.)  The project will rely, in part, on the Federal Transit Administration's New Starts program.

Gov. Schwarzenegger Sign's Unprecedented Environmental Review Waiver Bill for Los Angeles Area Football Stadium

Remember the Hawaii Superferry? California seems to be in the same fix, but with a different outcome.

The Superferry attempted to qualify for an agency exemption from Hawaii's environmental review law to avoid preparing an environmental assessment. Then the Hawaii Supreme Court determined that the exemption did not apply. But instead of preparing an environmental assessment, Superferry successfully lobbied the legislature and the governor to pass and sign a bill into law (Act 2) that allowed the project to move forward without an environmental study that some critics were demanding. Then the Hawaii Supreme Court, entering the fray a second time, determined that the Act 2 violated a provision in Hawaii's constitution that prohibits "special laws" concerning the use of state lands.

Gov. Arnold Schwarzenegger signed Assembly Bill No. 81 into law on October 22, 2009, which allows the construction of a 75,000-seat stadium that developers hope will lure an NFL team back to the Los Angeles area. The bill exempts the stadium project from, inter alia, the following land use requirements:

• The California Environmental Quality Act (CEQA); and
• Any legal requirement concerning the content of a general plan or consistency with a general plan.

In voting to pass the bill, the California legislature considered, inter alia, the following:

• The economic recession;
• High unemployment in the state;
• The project would provide provide economic activity in the Los Angeles and other counties;
• The project includes an approximately $2,000,000,000 investment in the local economy, 12,000 construction jobs, and 6,700 permanent jobs in the Los Angeles region;
• The project would generate over $760,000,000 in annual economic activity and $21,000,000 in tax revenues annually for state, county, and local governments;
• The project prepared a 2004 environmental impact report, which analyzed aesthetics, air quality, biological resources, cultural resources, geology and soils, hazardous materials, hydrology and water, land use and planning, mineral resources, noise, population and housing, public services, utilities, recreation, and transportation and traffic; and
• The project prepared a 2008 supplemental environmental impact report, which found that found that the traffic generated by the stadium complex and associated development would generate substantially less weekday traffic and less traffic annually than the original proposed project at the same site.

The California waiver bill, unlike the Hawaii waiver bill, is not constrained by a constitutional prohibition on special laws related to private use of state land. (See Hawaii Supreme Court Holds that the Superferry Bill is Unconstitutional.) In Hawaii's case, judicial invalidation of the environmental waiver bill killed Superferry. In California, the bill nullifies a lawsuit filed by nearby residents of the City of Walnut over the project's environmental impacts. (See State Senate's vote backs Southern California stadium developers.)

Hawaii Land Board Approves 247 Acre Tuna Farm off the Big Island Coast

On October 23, 2009, the Hawaii Board of Land and Natural Resources approved Hawaii Oceanic Technology, Inc.'s ("HOT") conservation district use application for an open ocean yellowfin and bigeye tuna fish farm located 3 miles due west of Malae Point, North Kohala, Island of Hawaii.

According to HOT's final environmental impact statement ("EIS"), the project is described as follows:

Hawaii Oceanic Technology proposes to culture yellowfin and bigeye tuna using a closed loop aquaculture process, in which the fingerlings are grown from hatchery spawn of captured broodstock. The company proposes to grow out the tuna to market size in offshore submerged cages, segregated by species, that are self-powered un-tethered 54m diameter “Oceanspheres.” The proposed ocean lease site is a one square kilometer (247-acre) site, 1,320-feet deep, located 2.6 nautical-miles offshore Malae Point, North Kohala. Twelve Oceanspheres will be deployed incrementally over four years, culminating with an annual production capacity of 6,000 tons.

Fingerlings will be grown in land-based tanks at the Pacific Aquaculture and Coastal Resource Center in Hilo and/ or a future Natural Energy Laboratory Hawaii Authority tuna hatchery in Kona from eggs collected from locally-caught broodstock. About seven additional ahi would be caught each year in local waters to freshen the gene pool of the captured broodstock. The 12-inch, 5-pound fingerlings will be transferred by vessel to the Oceanspheres, and grown to 100-pound harvest size using dry fish feed through automated feed dispensers.

The land base for operations and maintenance equipment, vessels, and staff will be Kawaihae Commercial Harbor. Tuna will be harvested at sea for transshipping through Kawaihae or Hilo Harbor to existing processing and packaging vendors for air-freight to US mainland, Japan, and Hawaii markets.

Here is what the Oceanspheres will look like, according to the final EIS:


Various concerns were raised during the draft EIS comment period including impacts on wild fisheries, water quality, disease from farmed fish, and possible entanglement of wildlife. HOT prepared a thorough response to comments section in its final EIS, and will mitigate environmental impacts through a design that does not use anchors or loose nets. It will also develop a Marine Mammal Management Plan, Shark Management Plan, and Endangered Species Management Plan and Emergency Management Plan.

HOT's project is the nation's first tuna farm.

New Blawg: California Eminent Domain Report

California law firm, Nossaman LLP, recently announced the launch of its California Eminent Domain Report blog. Nossaman describes its blog as featuring "original content focusing on industry news, events, and policy impacting eminent domain and valuation issues throughout California."

On Appeal

Two interesting land use cases will be heard by the Hawaii appellate courts in the coming months.

The first case is Unite Here! Local 5 v. City and County of Honolulu. Petitioners Keep the North Shore Country and Sierra Club, Hawai‘i Chapter's application for writ of certiorari, filed September 8, 2009, was accepted by the Supreme Court on October 13, 2009 and will be scheduled for oral argument. The Supreme Court will consider whether a 20 year old EIS document prepared under the Hawaii Environmental Policy Act should be supplemented, if the proposed project were developed today. The Intermediate Court of Appeal's ("ICA") held that a supplemental EIS was not required because the proposed project analyzed in the EIS did not change. For a complete summary and analysis of the ICA decision, see Appellate Court Issues Opinion in Turtle Bay EIS Case.

The second case is Maunalua Beach Ohana v. Hawaii. In that case, the ICA will determine whether the circuit court properly granted Plaintiffs' partial summary judgment motion. Plaintiffs' motion argued that Act 73 was unenforceable under the Hawaii Constitution unless and until the State pays just compensation to Plaintiffs. The Plaintiffs' motion also sought an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73. Act 73 (2003), amended various statutes to provide that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands." The ICA will hear oral argument on Thursday, November 10, 2009 - 9 a.m.