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Waves Can the legislature adopt a law mandating that from here forward, upon an owner’s death, all of her property escheats to the State? Yes, according to the Hawaii Intermediate Court of Appeals. Because the property is not “vested” in future heirs and “may never materialize,” the State is free to take it.

That’s the basic rationale the 3-judge ICA panel adopted in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009), where the issue was not the right of descent and devise, but whether littoral property owners are entitled tocontinue to own accreted lands. In that case, the court held the legislature was not constrained by the takings clauses of the federal and state constitutions from simply assigning ownership of land which has not yet accreted from littoral property owners to the State. [Disclosure: we filed an amicus brief supporting the property owners, available

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Continue Reading Hawaii Court Of Appeals: Legislative Grab Of The Right To Beachfront Accretion Is Not A Taking

This just in: the Hawaii Intermediate Court of Appeals has issued an opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175, a case we recently analyzed here.

We conclude that (1) Plaintiffs and the class they represent had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners’ ownership right to existing accretions to the owners’ oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Accordingly, we vacate that part of the PSJ order which concluded that Act 73 took from oceanfront owners their property rights in all future accretion that was not proven to be the restored portion of previously eroded land. We…

Continue Reading HAWICA: No “Vested Right” To Beachfront Accretion

WavesWith all that has been going on lately (SCOTUS arguments in the judicial takings case, New York’s courts issuing two big eminent domain decisions, etc.), we haven’t had the opportunity to summarize the oral argument in a very important Hawaii case.

Last month, the Hawaii Intermediate Court of Appeals heard arguments in the case about the taking of beachfront property, Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175.[Disclosure: we filed an amicus brief supporting the property owners, available here.]

Since there’s no official written transcript of Hawaii state courtappellate arguments, only an audio recording, we’re going toexperiment with a different approach than we’ve taken before, and embedsnippets of the recording into our written commentary, rather than attempt to transcribe the recording.

This is a rather long post, so if you’d rather just listen to our analysis along with the snippets, stop reading now

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Continue Reading Taking Accretion By Legal Erosion: Summary Of The Oral Arguments In The Hawaii Beach Takings Case (Podcast)

This is Part II of our preview of the oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the IntermediateCourt of Appeals held that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343.

In this post, we summarize the arguments of the parties and the amici. Part I of our preview (the summary of the issues and links to the opinion below and the briefs) is posted here.

A reminder: my colleague Mark Murakami, who blogs over at hawaiioceanlaw.com will be live blogging the arguments here (mirrored here). Tune in a few minutes before 9:00 when he goes live. I will also be commenting.

Keep the North Shore Country – Sierra Club, Hawaii Chapter

The parties seeking to overturn the ICA’s decision are Keep the North Shore Country…

Continue Reading Oral Argument Preview, Part II: Hawaii Supreme Court Considers Whether A Change In “Context,” But Not The Project, Triggers A Supplemental EIS

Hawsctbldg

On Thursday, December 17, 2009, at 9:00 a.m. Hawaii time, the Hawaii Supreme Court will hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu. Note: Justice Recktenwald is recused and Circuit Judge Derrick Chan will be taking his place. 

This post will review the issues in the case, and provide links to the parties’ and the amici briefs. In part II, we will summarize the arguments made by the various parties.

My colleague Mark Murakami, who blogs over at hawaiioceanlaw.com will be live blogging the arguments here (mirrored here). Tune in a few minutes before 9:00 when he goes live. I will also be commenting.

[Disclosure: although I have not participated in this case, two of my Damon Key colleagues — Mark, and Greg Kugle — have. They represented a party in the circuit court; Greg filed an amicus brief in the…

Continue Reading Oral Argument Preview, Part I: Hawaii Supreme Court Considers Whether A Change In “Context,” But Not The Project, Triggers A Supplemental EIS

No, not that Sgt Pepper taught the band to play (that was 20 years ago).

On Tuesday, December 4, 1979, the U.S. Supreme Court issued its landmark decision in Kaiser Aetna v. United States, 444 U.S. 164 (1979). My Damon Key colleagues Charlie Bocken and Diane Hastert briefed and argued a challenge to over a century of seemingly adverse precedent, and with the result garnered one of the very first modern opinions finding a regulatory taking. Read the opinion here.

Hawaii residents know this as the case which kept Hawaii Kai Marina (aka Kuapa Pond) private, and lawyers who practice takings, property, or navigation law know this as the case in which the majority opinion, authored by Justice Rehnquist, held that the navigational servitude is not a blanket exception to the Takings Clause, and just because a waterway is subject to regulation does not mean it is open…

Continue Reading It Was Thirty Years Ago Today…

Here’s a collection of some of the commentary about yesterday’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

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Continue Reading Stop The Beach Renourishment (Judicial Takings Case) Post-Oral Argument Round Up

We’re continuing our summary of today’s oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009). The transcript is available here.

The property owners’ argument summary is posted here, and the State’s argument is here.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

U.S.: No Need For Judicial Takings Here

Deputy Solicitor General Edwin S. Kneedler argued for the Obama Administration, which  appeared as amicus curiae in support of the State. Chief Justice Roberts characterized his initial argument — that this is a “conventional” takings case where the Legislature is alleged to have taken property — as a “clever ploy,” asserting “We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did. That changes the whole ball game.”…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part III)

We’re continuing our summary of the oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law. Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

The transcript is available here, and the property owners’ opening argument summary is here.

A Matter of Inches?

Scott D. Makar, the Florida Solicitor General, argued for the State. He began by distinguishing artificial avulsion and accretion. Tr. at 27-28. He characterized the renourishment as an avulsion, meaning the state would own the new beach under common law:

CHIEF JUSTICE ROBERTS: Well, is your view whenever the State does it, it’s an avulsion?

MR. MAKAR: If…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part II)

Today, the U.S. Supreme Court heard oral argument in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law.

The transcript is available here. Justice Stevens did not participate.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

New Law Or Old Hat?

Florida attorney D. Kent  Safriet, attorney for the property owners, started off by reminding that the basic premise in regulatory takings is that all branches of state government, including the judiciary, are bound by the Takings Clause. Tr. at 3-4.

Justice Ginsburg, as one might expect, seemed skeptical, suggesting that if beach restoration (“renourishment,” as they call it in Florida) was…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part I)