Some Days You Get The Bull, Some Days The Bull Gets You

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Robert Thomas

BY ROBERT THOMAS – Did you know that as a Hawaii landowner you own all unmarked or unbranded cattle, horses, mules, donkeys, sheep, goats, and swine, over twelve months of age, which may be running wild on your land? Yeah, we knew that.

We also knew that you are going to love any opinion that starts out with “[t]he dispute between the parties arises from [the Department of Hawaiian Home Lands]’s roundup and sale of roughly 115 head of Nobriga’s cattle.” Our mind immediately hears the twang of Frankie Laine’s rendition of the Rawhide theme as we dive into the case. So you’ve really got to check out the opinion of the Hawaii Intermediate Court of Appeals in Freddy Nobriga Ent. Inc. v. State of Hawaii Dep’t of Hawaiian Home Lands, No. 28805 (Jan. 30, 2013), a fact pattern straight out of the Old West (and your Property 101 casebook).


Nobriga grazed his herd on land leased from DHHL on the Big Island of Hawaii. The agency eventually terminated the leases, and Nobriga apparently removed some — but not all — of his cattle from DHHL’s land (“several head,” the opinion reports, “escaped” — we’re envisioning a cow on a motorcycle like Steve McQueen making a break for Switzerland, or some such). DHHL hired another paniolo to remove all cattle from the parcels. He eventually removed and sold 181 head, of which 115 were Nobriga’s.

Thankfully, instead of having a quick-draw showdown at high noon in dusty streets of Waimea town, Nobriga only challenged the action in court. He filed a lawsuit raising claims for takings clause and due process violations, trespass to chattel (cattle!), conversion, intentional infliction of emotional distress (on him, not the cows, although they surely were distressed as well), breach of contract, and conspiracy, among others. DHHL counterclaimed for trespass, conversion, and breach of contract. In 2007, the trial court granted DHHL summary judgment, and Nobriga appealed (yes, this appeal really has been pending for nearly 5 1/2 years).

The ICA first reversed the grant of summary judgment on the conversion claim. The trial court concluded that DHHL had introduced evidence that it owned the cattle, an asssertion, if undisputed, would defeat Nobriga’s conversion claim. The ICA rejected that conclusion because Nobriga had not forfeited ownership of the cattle under the terms of the lease (as he had with other leases). The court also rejected DHHL’s ownership claim under the statute noted in the first paragraph of this post (Haw. Rev. Stat § 142-44), because DHHL had not shown that the cattle were unmarked or unbranded, and the circumstances showed that it was likely the cattle were identifiable as Nobriga’s because of markings or brands.

And who said we don’t have Judges of the Plains any more?

The ICA next upheld dismissal of the tort claims against DHHL on the grounds of qualified immunity. We know that this subject is just scintillating, but we’re not going to go into the court’s analysis, and instead leave it to you. See pages 10-12 of the slip opinion. Regarding the claim for immunity from Nobriga’s constitutional claims, the ICA held that Nobriga established a claim that DHHL violated his procedural due process rights by failing to provide him notice and an opportunity to be heard prior to seizing his herd.

Needed to be heard before taking his herd. Nice.

The court also concluded that the right was “clearly established” since Nobriga’s situation was very similar to that in a case in which the Hawaii Supreme Court’s held that a mooring permit held by the owner of a derelict boat was “property,” and that the owner was entitled to procedural due process before the State revoked it. See Brown v. Thompson, 979 P.2d 586 (Haw. 1999).

Finally, the ICA agreed with the dismissal of Nobriga’s takings claims. Here, the opinion gets somewhat perplexing, so we quote it at length:

Had Defendants complied with the statutory provisions for impounding cattle, their “taking” would have been a “lawful exercise of police power” unencumbered by the just compensation requirement. Brown, 91 Hawai’i at 12, 979 P.2d at 598. Instead, Defendants acted pursuant to a mistaken belief that they had legal authority to impound the cattle. Despite this mistake, we must examine the purpose of the taking, “not its mechanics.” Kelo v. City of New London, Conn., 545 U.S. 469, 482 (2005) (quotingHawaii Housing Auth. v. Midkiff, 468 U.S. 229, 244 (1984)).

The uncontested facts support the conclusion that Defendants’ purpose in clearing out the cattle was to advance DHHL’s goals in proceeding with its planting project and ultimately converting the land to homestead use. This was certainly a public purpose sufficient to justify a taking. See Midkiff, 467 U.S. at 245 (law condemning real property and transferring it to tenants satisfied public purpose requirement).

After the cattle had been sold, Defendants offered to compensate Nobriga. Although Nobriga disputed the value of the compensation, Defendants outlined a procedure for substantiating his claim. Nobriga failed to take advantage of that procedure. In opposing summary judgment, Nobriga did not produce any evidence that the proffered compensation or the procedure for verifying the value of the cattle were inadequate. There was not genuine issue of material fact on this issue. Nobriga failed to establish that the Defendants’ actions violated his constitutional rights under the takings clause in either the Hawai’i Constitution or the United States Constitution.

Slip op. at 18-19.

First, as a takings claim (or, perhaps more accurately, an inverse condemnation claim since it appears that Nobriga was only seeking compensation for the seized and sold cattle and was not trying to halt the DHHL’s actions), the public use/public purpose supporting the taking should either be assumed, or is not relevant to the inquiry. While prior to Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), a property owner could legitimately challenge the purpose of a taking under theAgins “substantially advance” test, the Supreme Court in Lingle clarified that challenges to the reason for the taking are Due Process questions, not takings issues. While we generally agree with the ICA’s analysis (we filed an amicus brief in Lingle arguing that the “substantially advance” test was a takings test of regulatory action under the Public Use Clause), the Supreme Court didn’t buy it. Thus, the first two paragraphs of the above quote really don’t get us anywhere.

Second, We’re not quite sure what to make of the court’s conclusion that because compensation was available or offered to Nobriga, he has no takings claim, because this sure does seem like Nobriga at least stated a claim for a taking: the DHHL seized and sold his property, and did not provide compensation.

This passage leaves us with more questions than answers. Via what process could he obtain compensation (the opinion only states that DHHL “acknowledged [its] mistake and offered Plaintiff compensation for the sale of its trespassing cattle”)?  What is “outling a procedure for substantiating” a claim? Did the ICA fashion some form of Williamson County ripeness requirement because until DHHL denied compensation, there was not an unconstitutional “taking without just compensation?” Or did the ICA create a requirement that an inverse condemnation plaintiff exhaust administrative remedies? What is the effect of the DHHL apparently offering compensation, but Nobriga considering it inadequate? Shouldn’t he have a claim for inverse condemnation for the difference, since both Takings Clauses require “just” compensation contemporaneous with the taking, and not merelysome compensation?

We don’t think the mere offer to provide some after-the-fact compensation insulates DHHL from a takings claim in state court, although if the procedures to obtain compensation were not ad hoc and simply made up as a mea culpa by DHHL, Nobriga may have had an obligation to pursue those processes first before coming to court. But we don’t really know, because we don’t know what those procedures may have been.

Like we said, more questions than answers.

Perhaps the court’s takings analysis should be viewed only as a product of the allocation of the summary judgment burden, and not a ruling on the unanswered substantive questions. Since DHHL apparently met its burden to produce evidence that it provided or offered compensation (or that it was otherwise available), the burden on summary judgment shifted to Nobriga to call into controversy the issue of whether the compensation process was available, or to support with some evidence his allegation that the compensation was not adequate. That should be a fairly minimal burden, but having failed to do so, Nobriga loses. If that’s the case, all the other stuff in the opinion is dicta, and our questions can be written off as unnecessary

Will Nobriga seek cert to clarify these questions? Stay tuned.
Freddy Nobriga Ent., Inc. v. State of Hawaii, Dep’t of Hawaiian Home Lands, No. 28805 (Haw. App. Jan. 30, 2…



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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 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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