▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose

Today, I filed an amicus brief (750k pdf) in the appeal regarding "Act 73," the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from uncompensated acquisition and arbitrary and capricious government action.  Second, the alternatives available to remedy unconstitutional acts by government include invalidation, as well as a claim for damages in inverse condemnation.

Here are the appeal pleadings, so far:

• Circuit court order granting summary judgment (500kb pdf)

• State of Hawaii's Opening Brief (6.2mb pdf)

• Amicus Brief of Hawaii's Thousand Friends (400mb pdf)

• Amicus Brief of Pacific Legal Foundation (750k pdf)
  

The Star-Bulletin detailed the enactment of the law in this 2002 story: 

"There is major erosion compared to accretion in this state," [State land surveyor Randall] Hashimoto said. Losing land to the sea is "the risk you run when you live along the coastal area."

But, [State Senator Fred] Hemmings said, "Even one's too many, especially when you have such a precious resource like Kailua Beach and people are out watering the beach" to get vegetation to grow seaward, which could help them expand their land holding. "It's wrong and we hope to put a stop to it."

Seems like apples and oranges here, folks.  People watering the vegetation in front of their properties has little to do with naturally occurring accretion which results from ocean forces.  "Accretion" was defined by the Supreme Court of the Kingdom of Hawaii as:

        Land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made.

Halstead v. Gay, 7 Haw. 587 (1889).  This definition remains good law.  In re Banning, 73 Haw. 297, 832 P.2d 724 (1992).  If the State wants to stop people extending their beachfront properties by artificially extending the vegetation line, there are better ways to do it than confiscating long-standing property rights without compensation or due process.