Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Check this out. A report from the Maui News that “Environmental court would be perfect fit here – judge.” Apparently, there is an effort to get the Judiciary or the Legislature to form another court with specialized jurisdiction, either formally like the Family Courts, or more likely on a less formalized basis like the “Drug Courts” that the circuit courts convene.

And who is recommending the formation of such a court? Why a judge from just such a court in Memphis, Tennessee:

“I’ve learned over the years that if you get them by the wallet, their hearts and minds follow,” Potter said to about 100 people at the Maui Arts & Cultural Center.
Potter said that an environmental court here is a perfect fit – and long overdue. There’s just so much to protect and balance in this delicate paradise, he said.

“The environment is everything here. It’s so precious to the people and the culture,” said Potter, who said he’s been coming to Maui for three years to organize the court. “And y’all need a court to protect all this beauty.”

“I challenge you to dream. By golly, just you in this room can change the whole state,” Potter said.

Oh really? First of all, the judge’s statement is really judicious, isn’t it? It sounds more like it came from an environmental prosecutor than an environmental judge to us. Perhaps fittingly, because we suspect that this is what such a court would, in effect, function as. Charged with a mission, would it surprise you if it went on a crusade and got “them by the wallet?”

Second, do we really need an environmental court, when we already have one? As U.H. lawprof David Callies pointed out last year, environmental plaintiffs have an enviable record of success in the Hawaii Supreme Court, which “has managed to find in favor of Sierra Club, Friends of the Earth, Earthjustice … 90% of the time, 70% of those decisions overturning the [Hawaii] Intermediate Court of Appeals … the national press goes bananas when the U.S. Supreme Court is regarded as being pro-business because it rules in their favor in the high 50% of the time — what is that telling you … what is that telling you? … ninety percent of the time, government and the private sector are wrong? Give me a break.”

From the Maui News article, it sounds like the “environmental court” is envisioned to function somewhat as a nuisance abatement court, as noted by the State Department of Land and Natural Resources who heads the enforcement division, who compared those who commit such “crimes” to rape (his words not mine):

Awo said that he believes that the existence of an environmental court will act as a strong deterrent against home-demolition dumpers, exotic fish poachers and others who commit crimes against nature.

“I’m not diminishing rape at all, but I do consider what these people do to be rape of the land,” said Awo. “Because of this unique place and our isolation, I really believe this is a great idea. Let’s face it, what we are doing now is not enough.”

As we see it, the problem is that we don’t doubt that whatever its initial charge, “mission creep” would set in and the scope of issues the environmental judges would be tasked to prosecute resolve would stray far beyond nuisance abatement and working with the accused parties to actually get something positive accomplished (like many drug courts do successfully). After all, when you mission is to go after those who are committing “crimes against nature,” shouldn’t you strive to “change the whole state?”

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.

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