hawaiioceanlaw.com

December 9th - Live Blog of Hawaii Land Use Case - Leone v. County of Maui

Upcoming ICA Oral Arguments on Ripeness and Regulatory Takings

Stay tuned here for a live blog of oral arguments in the case of Leone v. County of Maui. 

On Wednesday, December 8, 2010 at 10:00 a.m. HST, the Intermediate Court of Appeals will hear this case involving regulatory takings, Williamson County ripeness and GATRI v. Blane, 88 Haw. 108, 962 P.2d 367 (1998).

Robert, over at www.inversecondemnation.com, filed an amicus brief supporting the property owners in this case, here (along with the trial court decision and appeal briefs), and rumor has it that he is fairly familiar with regulatory takings in Hawaii, so look for his insights and analysis.  Me, I'll be typing away, trying to keep up with the arguments.

The legal issues presented by this case are not for the faint of heart and go to the core of the constitutional doctrine of ripeness.  Complicating the case are the Coastal Zone Management Act (which will be abbreviated SMA in the live blog) and the impact of the Hawaii Supreme Court decision in GATRI. 

Sand Comes and Sand Goes - But Who Owns It?

Accretion.  Does a property owner have an intangible right to future accretion or merely the right to the land when it accretes?  This question and more in a Hawaii case now pending before the U.S. Supreme Court.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii case.  My partner Robert Thomas posted this case at his inversecondemnation.com blog, here.

Petitioner's question presented is:  

For nearly 115 years, littoral owners in Hawai`i held riparian rights to accretion and direct ocean
access because their oceanward boundaries moved as beaches accreted and eroded. In 2003, Hawai`i adopted a statute – Act 73 – that, effective immediately, changed both existing and future oceanfront accretions throughout the state into “public lands.” Act 73 fixed oceanfront boundaries forever and, as a result, littoral owners lost both existing accretion and their riparian rights. In 2010, the Hawai`i Intermediate Court of Appeals ruled that the State owed just compensation only for accretion that existed in 2003. However, it held riparian rights to a shoreline boundary and future accretion could be taken for free because littoral owners’ riparian rights were only contingent interests in future accretion so they were not “property” for takings purposes. That holding directly conflicts with this Court’s decisions regarding the nature of riparian rights.

The question presented here is:

Since this Court has recognized riparian rights are vested property interests, can Hawai`i take those rights, including future accretion, without paying just compensation?

Our amicus brief, filed on behalf of Land Use Research Foundation of Hawaii, posits a different question:

In 2003, the Hawaii legislature adopted Act 73, which declared that the private right to own accretion on beachfront parcels was public property. The statute did not provide for compensation, and upon challenge by the Petitioners, a state trial court invalidated Act 73 as a regulatory taking of the right to accretion.

The Intermediate Court of Appeals of Hawaii partially affirmed, concluding that Act 73 was a taking of accreted land in existence in 2003 when the Act became effective. It also concluded, however, that the statute was not a taking of "future accretion," or land that might be accreted after 2003, because there was no certainty that accretion would occur, and littoral owners' right to accretion was therefore not "vested." The court concluded the legislature was free to recharacterize the private right to accretion as state property without compensation because Petitioners never owned it. In other words, the right to accretion is not "property" as that term is used in the Fifth and Fourteenth Amendments.

The question presented is whether the right to accretion is property within the meaning of the Fifth and Fourteenth Amendments, and therefore protected from ipse dixit redefinition into public property.

The Petition is here.

Our Brief is here.

Pacific Legal Foundation/Cato Institute's brief is here.

The State of Hawaii declined to submit an opposition to the Petition.

Shoreline Access and Property Boundaries - Haw Legislature Considers Definitions

Whoa.  The legislative staff has been busy at the State Capitol. 

Last month, we reviewed H.B. 1808 which was pending before the Hawaii Legislature relating to the definition of shoreline that attempted to assist in the definition of the demarcation of property between the State and oceanfront landowners (earlier post here).

The bill has been revised and has passed the House.  Current version of H.B. 1808 is here.  (I have also subscribed to the Leg's very cool feature which allows for status updates through RSS fee, hat tip to the Leg).

From the bill:

SECTION 1. The legislature finds that there are many shoreline areas throughout the state where the overgrowth of vegetation inhibits lateral access and transit along the beach, thereby denying the public of use and enjoyment of the public domain. The area seaward of' the shoreline is part of the State's conservation district and is regUlated by the department of land and natural resources. Although natural vegetative overgrowth exists along beach areas, there is also evidence in many areas of vegetative overgrowth into the beach area induced or cultivated by private property owners. The department does not have the funding nor should it be financially responsible for the removal of induced or cultivated vegetation by private landowners which interfere or encroach seaward of the shoreline.

The legislature further finds that beach transit corridors are similar to public sidewalks in the sense that they are for public use. To maintain beach transit along the shoreline, provisions similar to those  pertaining to the maintenance of sidewalks are needed when induced or cultivated vegetation interferes or encroaches into the beach transit corridor.

The purpose of this Act is to reaffirm a longstanding public policy of extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible by ensuring the public's lateral access along the shoreline, by requiring the removal of the landowners' induced or cultivated vegetation that interferes or encroaches seaward of the shoreline.

The bill also purports to criminalize the failure of a landowner to maintain vegetation that encroaches on the access areas. 

Interesting twist.  The bill defines says that land seaward of the property boundary is the beach transit corridor. And, provides:

However, in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit for the public along the shoreline below the private property lines, the counties by condemnation [shall] may establish along the makai boundaries of the property lines public transit corridors which shall be not less than six feet wide.

(b) Along beach transit corridors where the abutting landowner's human-induced, enhanced, or unmaintained vegetation interferes or encroaches with beach transit corridors, the department of land and natural resources may require the abutting landowner to remove the landowner's interfering or encroaching vegetation. "

So, the counties (which typically do not have an ownership stake in the shoreline) may condemn "along the makai boundaries" to make a corridor? 

Lot to digest with this bill. Stay tuned.

When the Ocean Comes To You: SCOTUS Asked to Review - Sharp v. United States

This is an interesting case that has been comprehensively covered by my partner, Robert Thomas, on his blog, www.inversecondemnation.com.  But, it is an important shoreline precedent and deserves mention here.

Simply put, can a shoreline property owner be liable, under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. s. 401, when structures that were lawful when constructed become unlawful (in trespass) through a property boundary that shifted shoreward through erosion? The Ninth Circuit opinion which answered that question, YES, is here.  The case is Sharp v. United States and this petition for Supreme Court review is certainly one to watch.

By way of factual background, aWashington shorefront property owner had erected a "shoreline defense structure" on then-dry land.  The land near the structure eroded and the structure then jutted out into now-tidelands.  Those tidelands were owned by the Lummi Indian Nation who, joined by the federal government, sued the property owner for trespass.

This case is the logical follow-on to another Rivers and Harbors case, United States v. Alameda Gateway, Ltd. 213 F.3d 1161 (2000)[Note: Robert rep'd landowner in that case].  In that case, the Ninth Circuit held:

Although § 10 does not explicitly mention the maintenance of structures in navigable waters, in the sense of keeping structures in place, we have interpreted the RHA as making unlawful the failure to remove structures prohibited by § 10, even if they were previously legal.

The problem with Alameda Gateway is that the statute prohibits the "creation of any obstruction" and "build or commence the building of any ...bulkhead, jetty or other structure."  44 U.S.C. s. 403.  The statute doesn't say anything about failing to remove structures.

Lots here.  Still digesting, stay tuned for more posts.

 

Hawaii DLNR and Coast Guard Clarify Policy on Marine Events

I am on the redeye to Los Angeles tonight, but wanted to get this news release posted.  Apparently, there has been some concerns about starting and finishing canoe regattas in the various harbors and the Coast Guard and State of Hawaii Department of Land and Natural Resources are crafting policy to address the issue.

The news release is available here at Hawaii247.

Per the release, the new guidelines are:

• DLNR and the USCG will not completely ban racing in the three specified boat channels but have placed very strict guidelines and requirements for their use as racing venues. Both DLNR and the USCG would allow racing in boat channels if all safety requirements are met.
• To conduct an organized race in Ala Wai, Keehi and Maunalua Bay channels, DLNR’s Marine Unit of the Division of Conservation and Resources Enforcement (DOCARE) would need to be contracted to continuously monitor and direct vessel traffic during racing. The fee for DOCARE’s Marine Unit is $1500 for four hours. There is a four hour minimum.
• Safety requirements for all marine events conducted in State waters are detailed in Marine Event Permits issued by DLNR with the concurrence of the USCG. Marine event permits are required for all marine events involving groups of participants and watercraft.
• Each request for a Marine Event Permit has been, and always will be, reviewed on a case-by-case basis and safety requirements will be stipulated according to the type of event, number of participants and number/types of vessels.

The full text of the release can be downloaded here.

 

Hawaii Leg Considers Amendment of Shoreline Definition

The Advertiser ran a story this morning on a bill pending in the Legislature regarding the definition of the boundary between oceanfront landowners and the public.  Article here.

I pulled the bill and it is reprinted below:

RELATING TO COASTAL AREAS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 205A-1, Hawaii Revised Statutes, is amended by amending the definition of “shoreline” to read as follows:

“Shoreline” means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of natural vegetation growth, or the upper limit of debris left by the wash of the waves[-], whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves.”

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect on July 1, 2050.

You can download here.  It is pretty sparse and appears to be a placeholder for further legislative action. 

Stay tuned.

Kuilima Oral Arguments Recording Available

The Hawaii Supreme Court has released the MP3 recording of the oral arguments in the case of Unite Here!, et al. v. City and County of Honolulu, et al.  It can be downloaded here.

We live blogged the event and you can review our notes/comments here.  We'll keep you posted.  The court has been issuing decisions about 2-3 months after oral arguments.

Kuilima Oral Arguments - Live Coverage

The Hawaii Supreme Court is hearing oral arguments in the case of Unite Here! Local 5 v. City and County of Honolulu.  Special thanks to my partner and fellow blogger Robert Thomas for the briefs and decision below.

Disclosure:  I represented a party to this case in the trial court, but it is not a party to this appeal.  My partner, Greg Kugle, represents an amicus in the appeal.

Kuilima EIS Case - Oral Arguments - Live Blog!

The Hawaii Supreme Court will be hearing the case of Unite Here! Local 5 v. City and County of Honolulu on December 17, 2009 at 9:00 a.m.  Since my fellow blogger Robert Thomas is out of town, I am gearing up for my maiden attempt at a live blog.  Stay tuned.

Background materials is available at inversecondemnation.com, here.