Materials And Links From Today’s Water Law Seminar

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.

• Haw. Const. art. XI, § 7  (the declaration of public trust).

• Hawaii’s Takings Clause.

• U.S. Constitution, amend. V (federal takings clause).

• U.S Constitution amend. XIV (federal due process clause).

• 42 U.S.C § 1983 (federal civil rights statute).

• 42 U.S.C § 1988 (prevailing party attorney’s fees statute).

• Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.

• The State zoning law, Haw. Rev. Stat. ch. 205.

• The Hawaii State Planning Act, Haw. Rev. Stat. ch. 226.

• The Hawaii Water Code, Haw. Rev. Stat. ch. 174C.

• Village of Euclid v. Ambler Realty Co.,272 U.S. 365 (1926), the case in which the U.S. Supreme Court firstupheld the segregation of land uses in an Ohio suburban town intodistricts against a substantive due process challenge. Law studentsstudy the case, land use lawyers and planners know it intimately, and “Euclidean” zoning has become the shorthand for district-based single use zoning.

• Hadachek v. Sebastian, 239 U.S. 394 (1915) – the government’s police powers can be used to protect against nuisances.

• Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).  Copy available here.  

• In re Water Use Permit Applications (Waiahole),94 Haw. 97, 9 P.3d 409 (2000) (the mother of all Hawaii water law cases– the decision so vast it required its own table of contents)

• In re Waiola O Molokai, Inc., 103 Haw. 401, 83 P.2d 664 (2004) (burdens of proof).

• State and local government agencies have public trust duties – Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (2006).

• A counterpoint to Waihole: David L. Callies & Calvert G. Chipchase, Water Regulation, Land Use and the Environment, 30 U. Haw. L. Rev. 49 (2007).  Copy posted here.

• Hawaii vested rights: Arrow of Time – Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii – 2006 U. Hawaii Law Review article. Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

• Upsetting settled expectations in shoreline law – accretion and erosion: Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Haw. ICA) – here’s the brief we filed which illustrates the principle that the legislature (or a court) cannot simply change the settled law without raising takings concerns. The issue in thatcase is whether the state or littoral landowners are entitled toownership of accreted land. In “Act 73,” the legislature declared thatshoreline land naturally accreted belongs to the State of Hawaii and ispublic property.  The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes.  Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State wins every time. 

• Compensation for regulatory taking of water rights – Casitas Municipal Water District v. United States, No. 2007-5153 (Mar. 3, 2009).