Vested rights

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Today, the Hawaii Supreme Court rejected certiorari (remember that under our procedures, you “apply” for cert which is “accepted” or “rejected”), and declined to review the Intermediate Court of Appeals’ decision in In re Campbell, No. 30006 (June 13, 2013), the case involving Land Court registration (Torrens title) and mineral and metallic mining rights.

The ICA held than an encumbrance does not exist if it does not appear on a Land Court registered title. In this case, the encumbrance was mineral and metallic mining rights, which the Territory of Hawaii claimed it reserved in a Royal Patent. The ICA concluded that if the Territory did so, its rights were extinguished when in 1938 it appeared in the Land Court to assert its other rights, but failed to raise the mining claims:

We hold that the Original [1938] Decree and the Original Certificate of Title extinguished the express government reservations…

Continue Reading HAWSCT Rejects Cert In Land Court Registration Case

Here’s the State’s Reply Brief supporting its application for cert and responding to the landowner’s BIO in the land court registration case, In re Campbell. The brief argues that “[t]his is no minor land dispute,” and “that the State is very concerned about the ICA Opinion.”

What’s so important about the State’s claimed reservation of mineral and metallic mines that had made it put up this kind of resistance? It’s not like there’s a whole lot of mining potential on Oahu’s north shore (unless its big waves they’re after). Scroll down to page 4 to get to what we suspect is the real gold that’s at stake here: geothermal rights (something Hawaii probably has in abundance):

If this Court grants the State’s application for writ of certiorari, it will have to consider whether minerals and metallic mines were ever part of the “bundle of sticks” conveyed by a…

Continue Reading Final Brief In Land Court Registration Case

Here’s the Response to Application for Writ of Certiorari by the State of Hawaii, which opposes the State’s cert app asking the Hawaii Supreme Court to review for grave error the Intermediate Court of Appeals’ opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

That’s the case in whic the ICA held that the intent of the land court registration provisions (Torrens title) in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id. That seems straightfoward enough, as any dirt lawyer in a state with a Torrens registration system knows. These systems, in which the state guarantees indefeasable title to the rights and interests reflected in the register, remain active in a…

Continue Reading Response To Cert Application In Land Court Registration Case

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The last couple of days, we’ve returned to Williamsburg, Virginia to attend the annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

The Conference is the annual gathering of legal scholars and practitioners who focus on property law and property rights to celebrate the award the B-K Prize to “an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights.” The list of past winners is a who’s who of property scholars and includues James Ely, Richard Epstein, Carol Rose, and Frank Michelman.

This year’s prizewinner is Columbia Law’s Thomas Merrill. The Conference panelists have thus far focused on his scholarship, including his landmark article on the right to exclude, titled, not surprisingly, Property and the Right To Exclude, 77 Neb. L. Rev. 730 (1998).

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Our Owners’ Counsel colleage Mark Savin speaking about “Defining the Essence of…

Continue Reading 10th Annual Brigham-Kanner Property Rights Conference And Prize – Thomas Merrill

Here’s one we’ve been meaning to post for a while, if only because it presents a fascinating issue about the nature of Torrens title (so much so that we filed an amicus brief on behalf of Pacific Legal Foundation in the Intermediate Court of Appeals).

The State of Hawaii has filed an Application for a writ of certiorari, asking the Hawaii Supreme Court to review for grave error the ICA’s opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

In that case, the ICA held that the intent of the land court registration provisions in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id.  That seems straightfoward enough, as any dirt lawyer…

Continue Reading New HAWSCT Cert Application: State Not Required To Preserve Encumbrances In Land Court Registration

In a 2-1 decision (en banc next?) in a case we’ve been following with some interest in which a Marin County oyster farming operation in the National Seashore sued the Interior Department for its decision to not renew the farm’s permit, in this opinion, a Ninth Circuit panel held that courts have jurisdiction only to review the limited question of whether the Department understood its authority to renew or not renew the permit. The majority held that the statute pretty much gives the Department total discretion whether or not to do so, and thus the courts could not review its decision that wilderness legislation prohibited any extension of the permit.

In the majority’s words, “[t]he choice was the Secretary’s to make.” Slip op. at 27 (footnote omitted). 

The panel held that the farm was unlikely to prevail on the merits, and thus affirmed the District Court’s refusal to…

Continue Reading 9th Cir: Courts Have No Jurisdiction To Review Discretionary Decision To Not Issue Permit

This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

Late last year, we posted the Complaint in a federal court lawsuit originating on Kauai. In that case, the owner of a property that has been designated for resort development for 35 years asserted that the adoption of a Charter amendment by the County’s voters and a follow-on ordinance adopted by the County Council that together created a new land use classification (“transient accommodation unit”), and severely limit the number of TAU’s was an attempt to restrict the number of visitors and part-time residents.

The Complaint contains three major allegations: (1) the measures are arbitrary and capricious and violate substantive due process as an attempt to limit visitors, (2) they violate the Hawaii Zoning Enabling Act (Haw. Rev. Stat. § 46-4, the state statute delegating zoning authority to the counties in certain areas for all you land use nerds), which prohibits adopting of zoning ordinances by initiative, and…

Continue Reading Hawaii Federal Court: Kauai Charter Amendment Limiting Vacation Rentals Is A Prohibited “Zoning Initiative”

Yesterday, the Hawaii Intermediate Court of Appeals issued an opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013), a fascinating case involving the nature of Torrens title. In doing so, the court rebuffed the State of Hawaii’s attempted land grab, which would have undermined the sanctity of all Land Court titles, and, in a sense, the very notion of property rights and settled expectations. The ICA also rejected the State’s attempt to transform the “public trust” doctrine into a physical servitude that would have allowed the State to flood land without consequence.

Before we go further, this disclosure: we filed an amicus brief on behalf of Pacific Legal Foundation in the case in support of the property owner.

Torrens (Land Court) Title

With that out of the way, some background. Hawaii is one of the few remaining states retaining…

Continue Reading HAWICA Thwarts State’s Massive Land Grab