This post deals with the practical impacts of the Hawaii Intermediate Court of Appeals’ recent decision in Maunalua Bay Beach Ohana 28 v. State of Hawaii,No. 28175 (Dec. 30, 2009). [Disclosure: we filed an amicus brief supporting the property owners,available here.]
First, some background for those who have not been following our recent posts on the November 2009 oral arguments, and the decision.
In 2003, the Hawaii Legislature adopted Act 73 (codifed here and here),which declared that title to shoreline land naturally accretedcannot be registered by anyone except the State, and that only theState could quiet title to accreted lands. Most critically, the Actdeclared that all accretion not registered was State property.
A three judge ICA panel held that Act 73 took accreted land in existence when the Act was adopted. The ICA agreed with the trial court that the Act rewrote the common law rule of accretion. See Halstead v. Gay, 7 Haw. 587 (1889) (accreted lands “belong to the owner of the contiguous land to which the addition is made”). Assigning ownership of accreted land from the littoral landowners to the State was a permanent per se taking because Act 73 allowed a physical occupation by the public of formerly private property:
[A]t the time Act 73 was enacted, it was Hawaii common law that shoreline property from the sea to the high-water mark was owned by the State, and any oceanfront accretions above the high-water mark belonged to the adjoining property owner, irrespective of whether a metes-and-bounds description of the accreted lands was included in the deed of the oceanfront property owner. Act 73 clearly changed the common law by declaring that all accreted lands “not otherwise awarded” and not previously recorded or the subject of a then-pending registration or quiet-title proceeding was now state or public property. Therefore, littoral owners who had such accreted lands when Act 73 became effective on May 20, 2003 had their ownership rights in their accreted lands taken from them by passage of Act 73.
Slip op. at 33-34 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)).
However, the court also held that Act 73 did not take land which had accreted or would accrete after the Act’s effective date. Since land may never accrete, the court reasoned, the right to accretion was merely speculative and was not a “vested” right. The court concluded these rights were not “property,” and thus no taking occurred when the State acquired them. As we detailed here, the court’s reasoning on this point is faulty, because the right to future accretion is a property interest protected by the due process and takings clauses from uncompensated acquisition.
Act 73 did not just change the common law of accretion, in doing so, it also changed the common law of shoreline boundaries. Recall that under In re Ashford, 50 Haw. 314, 440 P.2d 76 (1968), the boundary between public and private beach on most littoral parcels is defined by the “high wash of the waves.” (Hawaii’s law on this subject is different than most other jurisdictions, which use the mean high water mark as the public-private boundary, but that’s another story. Read this to find out why Hawaii is different). As beaches are constantly either eroding or accreting, that boundary is not fixed in one place, but moves where ever the high wash normally is. The boundary is the same on nearly all littoral parcels, and is relatively easy to locate. (Under Ashford, the “debris line” or the “vegetation line” are evidence of the location of the high wash of the waves.) A person walking along the beach has a fairly good idea of what is public and what is private.
After Act 73, however, the high wash is only the public-private boundary on eroded beaches, or where the beach has not changed. Where a beach has grown, the public-private boundary is somewhere further inland from the high wash of the waves, since Act 73 creates a State-owned strip of public beach seaward of the “old” boundary. The ICA’s decision added yet another layer of uncertainty since it held that if a beach accreted before May 20, 2003, it is private. And what if a beach first erodes, then accretes, then what?
The pre-Act 73 Ashford rule, with its single demarcation of the littoral boundary between public and private beach at least provided some certainty: if you remained seaward of the high wash — where ever it was on a particular day — you were on a public beach. Now, a person walking along the beach would very likely have no idea ofwhere the “new” boundary is, or which part of a beach is private andwhich is public.