BY ROBERT THOMAS – The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that “Act 73” (codifed here and here), the statute in which the legislature simply redefined accretion as public propertywas a taking, but accepted the State’s argument that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest.

In Act 73, the Hawaii Legislature changed over a century of common law and declared that title to shoreline land naturally accreted cannot be registered in Land Court by anyone except the State, and that only the State could quiet title to accreted land. The trial court held that Act 73 was a taking of beachfront property owners’ right to accretion, and invalidated the Act unless the State paid compenation.

On appeal, the ICA agreed that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but held that it was not a taking of what the ICA called “future accretions.” The court held that because future accretion might never happen, the State could acquire it without first paying compensation. Maunalua Bay, 122 Haw. at 53, 222 P.3d at 460. The ICA concluded,”any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions.” Id.

By a 3-2 vote, the Hawaii Supreme Court denied discretionary review. Disclosure: we filed an amicus brief in the ICA supporting the property owners, and filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

The ICA decision in essence concluded that the right to accretion (as opposed to the accreted land itself) is legally worthless, and not a property interest protected by the Hawaii and U.S. Constitutions’ takings and due process clauses. By creating a false distinction between “existing” and “future” accreted land the ICA allowed Act 73 to transform what had been private property into public property, without compensation and without justification (the legislature adopted Act 73 in order to expand public beaches, but it did not appropriate any money to pay for this new public land).

The cert petition asks the U.S. Supreme Court to review this Question Presented:

For nearly 115 years, littoral owners in Hawai`i held riparian rights to accretion and direct ocean access because their oceanward boundaries moved as beaches accreted and eroded. In 2003, Hawai`i adopted a statute – Act 73 – that, effective immediately, changed both existing and future oceanfront accretions throughout the state into “public lands.” Act 73 fixed oceanfront boundaries forever and, as a result, littoral owners lost both existing accretion and their riparian rights. In 2010, the Hawai`i Intermediate Court of Appeals ruled that the State owed just compensation only for accretion that existed in 2003. However, it held riparian rights to a shoreline boundary and future accretion could be taken for free because littoral owners’ riparian rights were only contingent interests in future accretion so they were not “property” for takings purposes. That holding directly conflicts with this Court’s decisions regarding the nature of riparian rights.

The question presented here is:

Since this Court has recognized riparian rights are vested property interests, can Hawai`i take those rights, including future accretion, without paying just compensation?

In many ways, this case has the potential to answer many of the questions left open by the Court last term in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010) (the “judicial takings” case), such as:

  • Are future interests property, or can state legislatures confiscate them because they have not “vested?”
  • If a state appellate court finds a statute constitutional only by changing long-standing state common law and makes a formerly private right public, is that a “judicial taking?”
  • Are there some common law property interests that are so fundamental that a state court cannot alter them?

More to follow at http://www.inversecondemnation.com/


Robert Thomas is a Hawaii attorney with Damon and Key. He blogs regularly at http://www.inversecondemnation.com/

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