Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here’s the inevitable reaction to U. Hawaii law Professor David Callies’recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling,” so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court’s defense.

In “Hawaii Court Upholds Public Responsibility In Environmental Cases,” an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are a well-established requirement under the law, and the Court correctly rejected his argument that an EIS is valid forever, no matter how much circumstances change.

Fundamentally, Callies’s bone of contention stems from the mistaken belief that property owners should be entitled to build when and where they want to. On the contrary, developers have no God-given “right” to build large urban sprawl projects on land set aside for agriculture or conservation. Hawaii wisely distinguishes between industrial/urban, where development is generally free to occur, and conservation/agricultural, where land more closely regulated. We created this careful management process because of our experiences in the 1960s, when development ran amok and people realized the need for some restraint.

This sounds like “infill” and “smart growth,” and the notion that “we” should live in the urban core, even though many people would prefer not to raise their families in Hong Kong-style apartment buildings. But to us, the question is not so much whether “developers” have a “God-given ‘right’ to build large urban sprawl projects” (indeed, when you frame the issue thusly, will you accept any answer but a negative one, especially in a jurisdiction where the Supreme Court holds that the “western concept of exclusivity is not universally applicable”?), but whether other property owners are subject to the authors’ same assumption: that their constitutional rights to make reasonable use of their land are not “rights” at all, but mere privileges doled out by the state. We think you know our answer to that one.

The piece is definitely worth a read, even though we’re not sure the Hawaii Supreme Court needs defending, and often the best strategy when you are ahead is to keep running rather than look backwards and call your former professor a liar (the piece starts off painting Callies’ conclusion as “a lie told often enough [that it] becomes the truth”). Or is this a case of the lady doth protesting too much?

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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.