Some takeaway points:
- The definition of “shoreline” in the Coastal Zone Management Act –while it may be based on, and similar to the common law boundarybetween public and private property — does not define the location ofthe public beach. It is merely the baseline from which the shorelinesetback (the “no-build” zone on beachfront lots). The setback meansonly that a property owner is prohibited from building within so manyfeet of the shoreline. “Shoreline certifications” and one year validityhave nothing to do with
- The value of the accreted property taken in not “minimal.” The Honolulu Star-Bulletin‘s story on the decision reported:
But [Rep. Cynthia] Thielen[(R, Kailua-Kaneohe Bay), who pushed the law] said the landowners might have a tough road ahead in pursuing theirclaims against the state for land existing as of 2003.
“It will have to play out in the courts, and there is quite a burden ofproof on the landowners,” she said. “Even if they were able to, theamount of compensation would be minimal because it’s not buildableland. That accreted land would either be in the conservation district,or it would be within the shoreline setback.”
“For the public, the value is immeasurable in terms of access to the beach.But to the private property owner, compensation would be minimal.”
Even if a littoral property owner can’t build onaccreted land doesn’t mean it is worthless: it can be used exclusivelyby the littoral landowner, and that alone is of great value. And whatof severance damages (damages to the remainder parcel) once theaccreted land is severed and the littoral parcel is cut off from itsdirect contact with the ocean by a State-owned strip of land? The valueof that is the difference between a parcel on the ocean and a parcel near the ocean.
Misconception #2: Litigants should fear the U.S. Supreme Court. Underlying the demand that the State quit is the assumption that theHawaii Supreme Court’s decision will not be fairly considered by theU.S. Supreme Court. But if the Hawaii Supreme Court’s decision thatCongress had the power and intended for the Apology Resolution torequire a “political settlement” is correct, what’s to fear by furtherreview?
Misconception #3: This is an issue that involves Hawaii law. Not so. The issue before the Court is one solely of federal, not state law. However a recent op-ed claimed that state laws are at issue:
Atthe center of the legal controversy is the Hawai’i Supreme Court’sreliance upon the Apology Resolution of 1993, passed by both houses ofCongress and signed by President Clinton, and myriad other state laws that acknowledge the disenfranchisement of Native Hawaiians by the United States.
(emphasis added). The Advertiser story also quoted a statement from the groups staging the rally:
“A U.S. Supreme Court decision threatens what our state Legislature andstate courts have already decided — Native Hawaiians have a validunsettled claim to ceded lands.”
(emphasisadded). That statement is literally correct, but omits the criticalfact: the Hawaii Supreme Court held — as a matter of federallaw (the Apology Resolution) — that Congress intended to change theState of Hawaii’s sovereign power to manage the ceded lands for thebenefit of all the people of Hawaii. The Court is reviewing thefollowing Question Presented:
In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow. The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all the land owned by the State-unless and untilit reaches a political settlement with native Hawaiians about thestatus of that land.
State of Hawaii’s Petition for a Writ of Certiorari (available here).This and the other issues in the case are entirely matters of federallaw. Indeed, if the Hawaii Supreme Court’s decision rested onindependent and adequate state law grounds, the U.S. Supreme Courtcould not review it.
Misconception #4: This is an issue only limited to Hawaii. Twenty-nine other states filed a separate briefjoining Hawaii in asking the Court to review the case because it hasnational implications about how all states manage their public lands:
The twenty-nine amicus states and commonwealth ask theCourt to grant the petition for two reasons. First the rule of lawadopted by the Hawaii court conflicts with this Court’s holdingregarding lands granted to the states. This Court’s decisionsrecognize that land cannot be taken from a state after it is granted atstatehood. The Hawaii court’s ruling to the contrary is inconsistentwith the plan of federalism in the Constitution. Second,the case involves a grossmisapplication of federal law to impair the title to the majority ofland ownedby a sovereign state. A question of federal law of the magnitudepresented by this case concerning the legal interests of a sovereignstate in its state lands merits the attention of this Court.
Amicus Brief of the States of Washington, Alabama, Alaska,Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky,Louisiana, Mayland, Michigan, Mississippi, Nebraska, New Hampshire, NewMexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, RhodeIsland, South Carolina, South Dakota, Utah, Vermont, Wyoming, and TheCommonwealth of the Northern Mariana Islands in Support of Petition forWrit of Certiorari at 3-4. The brief is available here.
The New Mexico Commissioner of Public Lands filed a separate brief, available here, asserting the Hawaii Supreme Court’s decision usurped “a practice ethat had evolved from the earliest days of the Union to allow newstates to be admitted on an equal footing with existing states.”
The Hawaii processes were somewhat similar to theprocess used to confirm land titles after California statehood in1850. Pursuant to the UnitedStates’ international obligations under the Treaty of GuadeloupeHidalgo which ended the Mexican War, Mexican titles and property rightswere confirmedby the United States Board of Land Commissioners, and later federallypatented. Congress established a comprehensive claims settlementprocedure administered bya board of land commissioners, and provided that any claims notpresented to the board were forever barred. See, e.g.,United States v. Peralta, 60U.S. (19 How.) 343 (1857) (the US Supreme Courtconfirmed the grant to the Peralta family from the Spanish King of the land that encompasses the present cities ofBerkeley, Oakland, Albany, El Cerrito, San Leandro, and Alameda,California). More information about California’s confirmation process here.
Sorry about the long digression, but the history set out in Omerod reminded me of a casewe litigated a few years ago involving property adjacent to SanFrancisco Bay, in which one of the key issues was the legal status andphysical condition of the property at California statehood. The decision of the Court of Federal Claimsin that case represents one of the few instances where a court has heldthat the federal government was liable in inverse condemnation fortaking private navigable waters.
Also of interest is the U.S. Supreme Court’s decision in Summa Corp. v. California,466 U.S. 198 (1984), which held the state’s failure to assert apublic trust interest in tidelands during the federal land patent processworked a forfeiture of the public trust, which could not be applied tothe property.
Anyone interested in California’s land title confirmation processshould read two books that cover the legal and social consequences: W.W. Robinson, Land in California (1948) and Leonard Pitt, The Decline of the Californios: A Social History of Spanish-Speaking Calfornians, 1846 – 1890 (1966).
Equitable Estoppel – Government “Assurances of Some Form”
Similarly, the equitable estoppel claim should have been based upon the same concepts. “Equitable estoppel” focuses on the government’s conduct, and whether it would be fair to permit the government to exercise its regulatory power inconsistently after it has induced a property owner to alter its position in reliance on earlier government assurances. Equitable estoppel has constitutional underpinnings, since we legitimately expect the government to be both transparent and consistent, and not make promises one day that it disavows the next, especially when they involve interpretation and application of the government’s own ordinances.
Under Hawaii law, the critical issues are whether the government has provided “assurances of some form,” and whether the property owner has reasonably relied on those assurances. When a regulatory scheme grants the government the discretion to apply the regulations in a variety of ways, the last discretionary act in the regulatory scheme is the “assurance” on which a property owner has a right to rely. [I discussed this doctrine in some depth in “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii,” (published by the U. Hawaii Law Review in 2006).]
The court incorrectly focused on whether the County had discretion in the permitting process, not whether in 2001, the County had given its official assurances. See slip op. at 40 (“the County maintains discretion in determining whether to grant a permit application”).
Because the County Planning Director has the authority under the Maui County Charter to enforce the zoning code, the Director’s written assurances that the Planning Department would apply its zoning laws a certain way are “official” assurances, and binding upon the County. Since the plaintiff alleged it relied upon those assurances, the estoppel claim should not have been dismissed.