In “Beach ownership is still in question,” the Honolulu Star-Bulletin reports on Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175, the appeal currently pending in the Hawaii Intermediate Court of Appeals about whether Hawaii’s “Act 73” effected a taking of property. Thanks to Charley Foster at Planet Kauai for the heads-up on the report.
[Disclosure: we filed an amicus brief supporting the property owners, available here.]
The issue in the case is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In Act 73, (codifed here and here)the legislature declared that shoreline land naturally accreted belongsto the State of Hawaii and is public property.
The act overturned theage-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 gets it 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 took aninterlocutory appeal to the ICA. The trial court’s order finding ataking is available here. The recording of last month’s ICA oral arguments is posted here.
here:
In Hawaii the public beach is defined as theshoreline to the highest wash of the waves over the course of a year, aboundary that can move over the years, and is often delineated by thevegetation line or debris line. Common law in Hawaii gave adjoiningproperty owners rights to new, naturally formed land above thehigh-water mark. Since 1985 property owners have had to prove such landexisted for 20 years before they could register it as their own.
Althoughthe current lawsuit was filed by Portlock landowners, the roots of theissue reach to the Windward side and the shrubbery growing on Kailua’sshoreline nearly a decade ago. As Kailua Beach widened over the years,some beachfront owners began watering public land to encouragevegetation to grow in hopes of extending their property line. Thatalarmed some residents, who turned to their legislators for help.
“Iwas just a stay-at-home mom who witnessed property owners intentlyplanting and watering on the public beach in order to claim the beachas their property,” said Karen Simmons, a local resident who helpedpush for the law. “So I asked, Why are they allowing people to stealthe public beach?
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The issues in the appeal are summarized on the Judiciary web site:
Prior to 2003, an owner of oceanfront lands inHawai`i could apply to register title in the Land Court, or bring anaction to quiet title, to adjoining land formed by accretion, providedthat the owner could “prove by a preponderance of the evidence that theaccretion is natural and permanent.” Hawaii Revised Statutes (HRS) §§501-33 (1993) and 669-1(e) (1993). To be “permanent,” the accretionmust have been in existence for at least twenty years.
In 2003, the Hawai`iState Legislature passed a bill which the Governor signed into law asAct 73, which amended various statutes to provide that (1) owners ofoceanfront lands could no longer register or quiet title to accretedlands unless the accretion restored previously eroded land, (2) onlythe State could register or quiet title to land accreted along theocean, and (3) accreted lands not otherwise awarded would be “publiclands.”
Plaintiffs-Appellees Maunalua Bay Beach Ohana 28,Maunalua Bay Beach Ohana 29, and Maunalua Bay Beach Ohana 38(collectively, Plaintiffs) are Hawai`i non-profit corporations formedby homeowners in the Portlock area of O`ahu. In 2005, Plaintiffspurchased from the Bishop Estate a narrow strip of land betweenoceanfront homes in Portlock and the ocean.
On May 19, 2005,Plaintiffs filed this inverse condemnation lawsuit on behalf ofthemselves and all owners of oceanfront property in Hawai`i (oceanfrontowners), asserting that Act 73 (1) took oceanfront owners’ right toclaim accreted land and declared all such land to be “state land”; (2)took from oceanfront owners their property rights in (a) all accretedoceanfront land which existed on May 20, 2003 and which had notpreviously been registered or been made the subject of then-pendingregistration proceedings, and (b) all future accretion which was notproven to be the restored portion of previously accreted land; (3)damaged oceanfront owners’ remaining property by depriving them ofownership of the land abutting the ocean; and (4) damaged all accretedlands by placing them in the conservation district.
Plaintiffs sought just compensation, blight damages,a declaratory judgment that Act 73 was unenforceable under the Hawai`iConstitution unless and until the State pays just compensation toPlaintiffs and the class they represented, and an injunction forbiddingthe State from asserting ownership or control over the affectedproperty and from enforcing Act 73.
The circuit court granted Plaintiffs’ motion forpartial summary judgment on Plaintiffs’ claim for injunctive relief tobar enforcement of Act 73 “unless and until the State of Hawai`iacknowledges that it must provide just compensation to the classmembers and undertakes to do so in conjunction with these proceedings.”This interlocutory appeal followed.
We filed an amicus brief for Pacific Legal Foundation, acopy of which is available here.The brief makes two points:
First,the right to future accretions is property protected by the Hawaii andU.S. Constitutions from uncompensated acquisition and arbitrary andcapricious government action. Second, the alternatives available toremedy unconstitutional acts by government include invalidation, aswell as a claim for damages in inverse condemnation.
Here are the merits and amici briefs:
- State of Hawaii’s Reply Brief (to be posted)
The Honolulu 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] Hashimotosaid. Losing land to the sea is “the risk you run when you live alongthe coastal area.”
But, [State Senator Fred] Hemmings said, “Even one’s too many, especially when you have sucha precious resource like Kailua Beach and people are out watering thebeach” to get vegetation to grow seaward, which could help them expandtheir land holding. “It’s wrong and we hope to put a stop to it.”
Seems like apples and oranges here, folks. People watering thevegetation in front of their properties has little to do with naturallyoccurring accretion which results from ocean forces. “Accretion” wasdefined by the Supreme Court of the Kingdom of Hawaii as:
Land formed by alluvion, or the gradual and imperceptibleaccretion from the water, and land gained by reliction, or the gradualand imperceptible recession of the water, belong to the owner of thecontiguous 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 peopleextending their beachfront properties by artificially extending thevegetation line, there are better ways to do it than confiscatinglong-standing property rights without compensation or due process.