2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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will."); Burke v. Oklahoma City, 350 P.2d 264, 268 (Okl.1960) ("Right to exercise power of eminent domain cannot be contracted away, and contract between the city and landowner, whereby city agreed not to condemn any land for a certain street, in consideration of the landowner's conveying to it certain land for that street, did not affect the city's power to condemn land therefor. . . . [T]he right of eminent domain is inalienable, cannot be surrendered in whole or in part and cannot be contracted away and res adjudicate and estoppel do not constitute defenses to the causes of action set forth in the petition to condemn as filed by the City. . . ."); Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So.2d 428 (La.App.1967) (the plaintiff, using a procedure like eminent domain, was held to be acting through extended powers and a former agreement not to condemn was no valid restriction on the later action against the same property for an enlarged right of way. The right cannot be limited by agreement.);State v. Charlton, 71 Wash.2d 748, 750, 430 P.2d 977, 978-979 (1967) ("There is authority in this state to the effect that the power of eminent domain cannot be surrendered or bartered away,nor can an agent of the state bind it to a restricted exercise of that power. State ex rel. Devonshire v. Superior Court, 70 Wash.2d 630, 424 P.2d 913 (1967), State ex rel. Henry v. Superior Court, 155 Wash. 606, 284 P. 788 (1930)."). Such cases support the fundamental principle that the County can not be denied rights to acquire property, that is, the power of eminent domain, it determines to be necessary to the County's function by reason of contract, res judicata, estopple or claim of abatement in prior legal action(s). The opening brief at page 28 also argues that concurrent lawsuits violate the Coupes' due process rights. The Coupes cite three unrelated cases. The cases involve failure to comply with notice requirements and eminent domain statutes, but the Coupes do not allege any notice or statutory compliance defects against the County. The only due process argument set forth in the opening brief states: "Due process is violated when a property owner is forced to endure concurrent attempts to condemn the same land." (page 29) The County submits that the Coupes' due process rights were not violated because the cases involved different causes and relief, and the cases were consolidated. Moreover, the Coupes failed to make this argument at trial. The Coupes' due process arguments at trial only concerned alleged defects with the Development Agreement not related to defending against two lawsuits. Coupes Proposed FOFCOL pp. 56-60 (R.O.A., 00-1-181 K, V.40/00495, and 05-1-15K, V.27/01019). 21