Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).
In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take “future accretion.” We summarized the opinion here. [Disclosure: we filed an amicus briefsupporting the property owners, available here.]
The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State’s Motion for Clarification is here.
The property owners assert the ICA’s conclusion that “future accretion” is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. Co. v. Southern Pac. Co., 151 F. 376 (9th Cir. 1907), Cohen v. United States, 162 F. 364 (C.C.N.D. Cal. 1908), Latourette v. United States,150 F. Supp. 123 (D. Or. 1957), to hold that accretion was similarlynot “vested,” and the legislature could take it without consequence. The property owners point out that a recent Ninth Circuit panel decision (United States v. Milner, No. 05-35802 (Oct. 9, 2009), an opinion we summarized here) undercuts the ICA’s reliance on those older cases. Barista’s note: a cert petition was recently filed seeking review of Milner.
The property owners also seek reconsideration of three other issues: the ICA’s public trust dicta (an issue we discussed in this post (scroll down to “The ‘Notice’ Defense Revived?”)), proof of existing accretion, and the propriety of class certification. The property owners’ Motion for Reconsideration is here.