Real Estate & Property Law

Amicus Brief In Hawaii Beach Taking Case: "Future" Accretion Is A Present Property Interest

By Robert Thomas (inversecondemnation.com)

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 never happen, the State could acquire it without first paying compensation. Maunalua Bay, 122 Haw. at 53, 222 P.3d at 460. The panel accepted the State?s argument that Act 73 did not affect a taking of future accretion, because the right is simply a contingent future interest. The panel 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.

Our brief asks the Supreme Court to review the ICA's conclusion that future accretion is not a property interest:

The ICA got it mostly right. It correctly held that Act 73 was a taking because it abrogated the long-standing common law of the Kingdom, Territory, and State of Hawaii by reassigning ownership of accreted land from littoral owners to the State without providing compensation. Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 55, 222 P.3d 441, 462 (Haw. Ct. App. 2009) ("[A]t the time Act 73 was enacted, it was Hawai?i common law that shoreline property from the sea to the high-water mark was owned by the State, and any oceanfront accretions above the high-water mark belonged to the adjoining property owner...Act 73 clearly changed the common law by declaring that all accreted lands...was now state or public property.") (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)). See, e.g., Halstead v. Gay, 7 Haw. 587, 588 (1889) (accreted lands "belong to the owner of the contiguous land to which the addition is made"). 

However, the ICA gravely erred when it crafted an artificial distinction between "existing" and "future" accretion, and held that "future" accretion was not "vested" and was therefore was not property protected from uncompensated appropriation. Maunalua Bay, 122 Haw. at 54, 222 P.3d at 461 ("Plaintiffs have no vested right to future accretions that may never materialize and, therefore, Act 73 did not effectuate a taking of future accretions without just compensation.").

This brief addresses two issues. 

First, the Takings and Due Process Clauses of the United States Constitution, and their counterparts in the Hawaii Constitution, do not recognize any distinction between "vested" existing accretion which is property, and "future" accretion, which is not. The right of littoral owners to acquire ownership of accreted land ? even if it occurs in the future or indeed, may never occur at all on any particular littoral parcel ? is a present, vested property right, long-recognized by the decisions of this Court and the U.S. Supreme Court as a fundamental attribute of property protected from uncompensated acquisition by the State. 

Second, by holding that "future accretion" is not property and that its ownership may be claimed by the State, the ICA effectively redrew the public/private beach boundary recognized by this Court in In re Ashford, 50 Haw. 314, 440 P.2d 76 (1968). In Ashford, this Court held that the "upper reaches of the high wash of the waves" is the boundary between public beach and private property on all beaches. Ashford, 50 Haw. at 315, 440 P.2d at 77. However, under the ICA?s confirmation of Act 73?s arbitrary "existing/future" distinction, the boundary will vary from parcel-to-parcel, depending on whether it has been subject to erosion or accretion, and whether the accretion occurred before 2003, or after. The practical consequence of the ICA?s conclusion on "future accretion" is statewide confusion about the location of the public/private boundary on the beaches.

Procedural notes: one of the standards for the Supreme Court to consider in reviewing an application for a writ of certiorari is whether the lower court "gravely erred." Also, under the Hawaii review process, what is usually called a "petition" for a writ is labeled as an "application." The application is either "accepted" or "rejected," and unless the Court asks for it, no further briefing is usually submitted.

We've analyzed this case in many earlier posts, including these: our summary and analysis of the opinion is posted here, and of the oral arguments is posted here. We also filed an amicus brief in the ICA.

Full post as published by inversecondemnation on April 29, 2010 (boomark / email).