Water rights | Public trust

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Things I never thought I would see in a Supreme Court opinion include the riddle “how much wood would a woodchuck chuck if a woodchuck could chuck wood,” but there it is, in black and white on page 11 of Justice Scalia’s opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is…

Continue Reading Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”

Today, by a 3-2 vote, the Hawaii Supreme Court declined to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [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.

In Act 73, the Hawaii Legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called “future accretions.”

The court…

Continue Reading HAWSCT Denies Cert In Beach Accretion Case

Yesterday, we filed an amicus brief in an appeal we wrote about earlier, In re Trustees Under the Will of the Estate of James Campbell, No. 30006. The appeal involves the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In Campbell, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State’s ownership of “all mineral and metallic mines of every kind or description on the property, including geothermal rights,” and is subject…

Continue Reading Amicus Brief In Hawaii Land Title And Public Trust Appeal

A couple of days ago, we posted “Final Briefs In Hawaii Beach Takings Case: Is ‘Future’ Accretion A Present Property Interest?” with what we thought was a complete set of the merits and amicus briefs filed in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010).

Turns out we missed one set, the amicus brief of Hawaii’s Thousand Friends which urges the Hawaii Supreme Court not to accept the application for a writ of certiorari filed by the property owners, and the property owners’ brief responding to HTF’s brief.

Here they are:

[Our usual disclosure: we filed an amicus brief in the Intermediate Court of Appeals supporting the property owners, and recently filed an amicus brief in the Supreme Court].

Unless there is another…

Continue Reading Final (Final) Briefs In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court – see below].

In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land…

Continue Reading Final Briefs In In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

SCOTUSblog has listed Sharp v. United States, No. 09-820 as a “petition to watch” for the Court’s conference today.

May 17, 2010 Update: cert. denied.

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential…

Continue Reading Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?

Yesterday, we filed this motion for leave to file brief amicus curiae and a copy of the proposed brief in support of the application for writ of certiorari which asks the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

In Maunalua Bay, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land.

The ICA, however, held that the Act was a taking only of existing accreted land, but was not a taking of what the ICA called “future accretions.” The court held that because “future” accretion might…

Continue Reading Amicus Brief In Hawaii Beach Taking Case: “Future” Accretion Is A Present Property Interest

The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

Disclosure: we filed an amicus brief supporting the property owners in the ICA, available here, and will be submitting a motion for leave to file an amicus brief urging the Supreme Court to accept the application for cert.

In its opinion, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of existing accreted land, but…

Continue Reading Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

The Solicitor General has filed the federal government’s Brief in Opposition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here).

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the…

Continue Reading Federal Government’s Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

A fascinating case is now pending in Hawaii’s Intermediate Court of Appeals involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. 

Hawaii has had a dual system of land registration. One is your run-of-the-mill system of registering deeds (what we creatively call “Regular System”). The other is “Land Court” registration, a statutory Torrens scheme of title registration where the State guarantees indefeasible title to the rights and interests reflected in the register. Land Court registration insures that interests which are not reflected on title do not exist. Indeed, persons who are wrongfully deprived of land or their interest through registration or the act or omission of the registrar are entitled to be paid by an indemnity fund, and the State’s guarantee operates against all claims, including claims by the State itself. 

As background (for those of you who, like me, weren’t paying…

Continue Reading Land Court, Schmand Court: State Disregards Torrens Title, Claiming Unstated, Preexisting Rights