Thursday, February 22, 2024
Hawai'i Free Press

Current Articles | Archives

Friday, May 27, 2011
Attorney: Seizure of Molokai Ranch for Windfarm may be illegal
By Robert Thomas @ 11:42 AM :: 10208 Views :: Kauai County, DHHL, Energy, Environment

Make Eminent Domain Imminent" - Fidell On Wind Power

From May 10, 2011

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in "Governor must insure wind farm moves forward," where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can't let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it's so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to exercise eminent domain, and big projects have suffered for it. This is a problem for both energy and other things, and we need to get over it. Big projects need big land, and until we can get that land, we'll be hampered in those projects.

The governor needs to get the Big Wind parties in a room and jawbone them into a deal. Failing that, he should do exactly what he threatened — yes, condemnation.

Take heart, governor. Be impatient about clean energy — you have the power. Make eminent domain imminent. Many people will support you in this, and a condemnation will assure progress on wind and other projects. Do it once and things will be easier going forward.

While I often agree with Jay, I can't buy in wholly this time.

First, I can’t say that we’ve "suffered" for being reluctant to condemn property (except, it appears, for residential and condo leaseholds – on that front, we’ve been very un-reluctant to condemn private property). Eminent domain is one of the most powerful attributes of sovereignty, and property owners have little in the way of defenses. It can financially and emotionally destroy homeowners and business owners to have their life’s work taken away. They may get compensated, but we invest our property with quite a bit more than what can be calculated by an appraiser. So I am glad that we exercise it reluctantly here in most cases.

Second, I also can’t agree with the use of eminent domain to favor one vendor over another. The Kelo majority’s willingness to uphold the condemnation in New London was based in large part on the fact that the city had not yet chosen Pfizer as the new owner at the time the city decided to condemn. The Court might have had a different view if, say, the city condemned the property specifically in order to turn it over to Pfizer (rather than to turn it over to a developer, who later turned out to be Pfizer).

When the government chooses a preferred beneficiary before it condemns, the taking looks a lot more like the prohibited "A-to-B" taking that the Court professes to frown upon, even after Midkiff and Kelo. The governor picking winners and losers also amounts to unwarranted interference in a process in which the government has little competence.

[Disclosure: I have represented the landowner in other cases.]


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Moms for Liberty

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii


Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

Sink the Jones Act

Statehood for Guam

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii