inversecondemnation.com

▪ 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.

▪ What is "Developed" Property?

The Washington (state) Supreme Court, in Sleasman v. City of Lacey (No. 77590-7, Feb. 8, 2007), decided what it means to have a developed parcel.  Actually, the court determined what the terms "undeveloped" and "partially developed" mean within the context of a local ordinance that regulates tree removal on such property.  The opinion is a good primer on what it means to own "developed" vs "undeveloped" property, even though it is Washington law-specific, since it discusses decisions from other jurisdictions.  Bottom line, according to the court, is that development takes place when the owner makes raw land suitable for residential or commercial use.  Best line in the opinion is the last, however:   

Lacey claims attorney fees under RCW 4.84.370 as a prevailing party.  But it isn't.

If only all court opinions were that direct.

▪ It Ain't Over 'Til It's Over: Transcript of Argument in Attorney's Fees Case

The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here.  That case presents the issue of whether a party who wins a preliminary injunction -- but ultimately loses the case -- has "prevailed" under a federal statute that allows a "prevailing party" to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.

That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment's property protections are federal civil rights, and 42 USC  § 1983 is often the vehicle by which these rights are protected.  Background on the case here, and (from SCOTUSblog) here.

The colloquy between the Justices and counsel (including counsel for the federal government, which participated as amicus supporting the petitioner) focused on the nature of the preliminary injunction remedy, and in an almost metaphysical discussion, what it means to "win" a legal case.  Does it mean "get what you want" (in this case, the plaintiffs wanted to do one of those now-ubiquitous nude protests but the public park's rules prohitibited nudity), or does it mean get a judgment?  The plaintiffs claimed that since they wanted to protest in the buff, and the preliminary injunction allowed them to do that, they "prevailed."  The local government, on the other hand, argued that while the plaintiffs may have obtained a preliminary injunction, at the end of the day, the court ruled that the park's nudity rules did not infringe on First Amendment rights.

I'll go out on a limb here, and do what I generally don't: predict the outcome.  The Court should reverse.  The history of section 1988 reveals that Congress intended that a party should win the case (the defendant infringed on the plaintiff's rights under color of state law, for example) before it gets to tag the other side with attorney's fees. 

Or, take your pick of a sports analogy - do you win the baseball game if you are ahead in the sixth inning?  The football game in the first quarter?  Did you "prevail" in the Tour de France if you are wearing the maillot jaune on the 10th day, or  only if you are wearing it on the podium on the Champs-Elysées?  Cases that make their way to the Supreme Court are almost by definition close calls, but this one does not seem to me to be one.  At least if I am wrong, I am in good company; Pennsylvania Litigation Blog predicts "this case appears as close to a slam dunk reversal as a Supreme Court case gets."  I agree.

▪ HAWSCT: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional

In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled. 

The critical language is set forth in the statute, which allows "any interested person" to seek a judicial declaration that an agency's rules are illegal:

§ 91-7  Declaratory judgment on validity of rules.  (a)  Any interested person may obtain a judicial declaration as to the validity of an agency rule as provided in subsection (b) herein by bringing an action against the agency in the circuit court of the county in which petitioner resides or has its principal place of business.  The action may be maintained whether or not petitioner has first requested the agency to pass upon the validity of the rule in question.

     (b)  The court shall declare the rule invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures.

The Court held that this statute is mandatory and the petitioner must bring the action in the circuit in which she resides or, if a business, has its principal place of business, despite the "may obtain" language in the first part of the sentence (slip op. at 8-9):

Admittedly, the legislature could have drafted the county rule using the word "shall" rather than "may," so as to make its mandatory jurisdictional effect clearer.  Nevertheless, we believe that "may," in the context of the county rule, implies that bringing a declaratory action in the plaintiff's home forum is an alternative to (1) seeking injunctive or monetary relief or foregoing litigation altogether, not (2) seeking declaratory judgment, but in another venue.

This decision is important for property owners for a couple of reasons. 

First, section 91-7 is an often overlooked tool when an agency's rules are alleged to exceed the scope of its delegated authority, superior state law, or the constitution; the decision confirms that legal action under 91-7 must be brought in the plaintiff/petitioner's county of residence.  The HHIA case involved an action against a state agency, but the court's holding applies with equal force to actions against county agencies.  For example, if the rules of an agency of the County of Maui are alleged to be illegal (for the standard, see subsection (b) of section 91-7), "any interested person" may seek a judicial declaration to that effect, and if that person resides in Honolulu, the First Circuit has exclusive jurisdiction, and the County of Maui must defend in Honolulu.

Second, the Court held that in 91-7 actions, the question of venue goes to subject matter jurisdiction, and thus may be raised at any time, and is not waiveable.

▪ Federal Circuit Arguments on the Penn Central Factors (mp3)

Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit's web site: part 1 (68mb mp3), and part 2 (7mb mp3).

Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).

▪ At the ALI-ABA Inverse Condemnation Conference

Light posting this week — I'm at the Inverse Condemnation and Related Government Liability conference.  If you're attending, please look me up; I usually sit in the back row.  If you couldn't attend this year, you really should consider it in the future: it's a great conference. 

▪ Takings and Historic Preservation: Penn Central

UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday.  I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public's desire to preserve a historic structure collides with a landowner's desire to make reasonable use of it.

That case also gave us the "ad hoc" (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.

In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, supra at 594. So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Causby, 328 U.S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

More to follow after what I am sure will be an engaging session.

▪ Land Use and Zoning Seminar

To all those who attended today's sessions on Practical Guide to Land Use and Zoning, thank you. 

Here is the upcoming attorney's fee case in the US Supreme Court that I mentioned, the Hawaii fee-shifting statute in cases of "development" without a permit in environmental matters, and California's Ehrlich v. City of Culver City case, where the court held that the Nollan/Dolan standards apply to non-property exactions, as well as governmental demands for property:

As we explain, we conclude that the tests formulated by the high court in its Dolan and Nollan opinions for determining whether a compensable regulatory taking has occurred under the takings clause of the Fifth Amendment to the federal Constitution apply, under the circumstances of this case, to the monetary exaction imposed by Culver City as a condition of approving plaintiff's request that the real property in suit be rezoned to permit the construction of a multi-unit residential condominium. We thus reject the city's contention that the heightened takings clause standard formulated by the court in Nollan and Dolan applies only to cases in which the local land use authority requires the developer to dedicate real property to public use as a condition of permit approval.

▪ Ninth Circuit on Jury Trials in Federal Eminent Domain and Inverse Condemnation Valuations

In United States v. 191.07 Acres of Land (Martinek) (No. 04-35131, Apr. 4, 2007), the Ninth Circuit addressed two interesting issues in the context of a federal taking of unpatented gold- mining claims in Alaska's Denali National Park.

The first is a question of appellate procedure: whether a party waives the right to appeal the denial of a demand for a jury trial by not seeking an immediate interlocutory appeal. 

The government instituted eminent domain proceedings against the landowner (which entitles the landowner to request a jury trial on the issue of just compensation), and the landowner filed a claim for inverse condemnation (which does not carry with it the right to jury trial).  The trial court held that the landowner had only a single claim for compensation, and the parties stipulated that the taking occurred on a date earlier than the government's declaration of taking.  Consequently, the court held that the landowner was not entitled to a jury trial. 

On appeal, the government claimed that the landowner had waived an appeal on the issue because he had not sought immediate review of the trial court's jury denial.  The Ninth Circuit held that in order to be deemed to have waived an issue for appeal, there must be an indication that the appellant "affirmatively waived his rights to post-judgment appeal of this issue." (slip op. at 3864).  Makes sense: objecting, but losing an interlocutory issue should be sufficient to preserve an issue for appeal once the judgment becomes final.  A litigant should not be required, on pain of being deemed to have waived an issue, to request piecemeal interlocutory appeals each and every time the trial court makes a ruling that does not dispose of a case.

The second issue was whether the trial court was correct in holding that the landowner was not entitled to a jury trial on the takings issue. That question is bound up in an understanding of the term "inverse condemnation," and is detailed in this post.

▪ What is "Inverse Condemnation?"

In United States v. 191.07 Acres of Land (Martinek) (No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of "inverse condemnation" in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land's use, the owner has a right to bring an "inverse condemnation" action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  "Such as suit is 'inverse' because it is brought by the affected owner, not by the condemnor.  The owner's right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation."  Id. at 5 n.6

(slip op. at 3865).  In Martinek, the Ninth Circuit held that because the parties had stipulated that the taking had occurred before the declaration of taking by the federal government, the landowner was seeking just compensaton for an inverse condemnation, not a direct condemnation, and therefore had no statutory right of jury trial.

Judge Leavy dissented on this issue, asserting that there were two takings, not one: the first taking was an inverse condemnation claim that started when the government imposed restrictive regulations and ended when the government formally filed the declaration of taking.  The second then began, and Judge Leavy asserted that the landowner had a right to jury trial on this second taking, which the landowner had not forfeited by bringing an inverse condemnation claim.   Judge Leavy's dissenting opinion also contains a good discussion of the nature of a regulatory takings claim, and the remedies available to property owners:

    A regulatory taking may be temporary in nature and still trigger the Just Compensation Clause, imposing a duty on the government to make payment for the temporary taking.  First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 317-18 (1987).  "The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations."  Id. at 317.  Abandonment "results in al alteration of the property interest taken — from full ownership to one of temporary use and occupation.  In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily."  United States v. Dow, 357 U.S. 17, 26 (1958).

(slip op. 3873).