To all of you who attended the first day of the Hawaii Land Use Conference today, thank you. As promised, here are the items I discussed during my two sessions:
- United States v. Milner, 583 F.3d 1174 (9th Cir. 2009) – the case in which the Ninth Circuit affirmed a finding of common law trespass for the building of a wall on fast land, because the shoreline eventually eroded up to it. Both parties had “vested rights” to an ambulatory littoral boundary. The U.S. Supreme Court denied review, as noted here.
- Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010) – our recently published law review article on the Stop the Beach Renourishment case, and the judicial takings doctrine.
- Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 130 S. Ct. 2592 (2010) – the U.S. Supreme Court decision on beach replenishment, accretion, and judicial takings.
- The amicus brief we filed in Stop the Beach Renourishment, which in addition to covering judicial takings, also details the Hawaii water cases.
- Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). This is the opinion in which the HAWICA held that Act 73 — the statute by which the Hawaii Legislature reassigned the right of accretion from private littoral owners to the public — was a taking of land that had been accreted in 2003 when the Legislature adopted the statute. The court also held, however, that the Act was not a taking of what it called “future accretion” since there is no “vested right” to land that was not in existence at the time the Act was adopted. The summary of the ICA oral arguments is posted here (includes podcast). Here is the amicus brief we filed on behalf of LURF in the property owner’s unsuccessful petition for a writ of certiorari to the U.S. Supreme Court.
- City of Long Branch v. Liu, No. A-9-09 (N.J., Sept. 21, 2010) – the case in which the New Jersey Supreme Court concluded that beach renourishment was really like common law avulsion.
- Severance v. Patterson – the case about Texas beaches and whether there is a “rolling” easement that moved upon sudden changes in the shoreline. Here is the Fifth Circuit case holding that the property owner’s claim for a Fourth Amendment illegal seizure is not subject to Williamson County ripeness, and here is the Texas Supreme Court’s decision on certified questions from the Fifth Circuit concluding that in order to assert an easement, the State must first prove it (the easement does not “roll” with hurricanes).
- Dave’ Swann’s Trouble in Paradise strip:
- Leone v. County of Maui – the appeal now pending in the HAWICA on whether a property owner must exhaust administrative remedies in order to pursue a regulatory takings claim (in this case, a Lucas deprivation-of-economically-beneficial-use per se taking)
- Some thoughts on County of Hawaii v. Ala Loop Homeowners, the case in which the Hawaii Supreme Court concluded that Haw. Rev. Stat. ch. 205 (the State’s zoning laws) are “environmental” statutes conferring a private right of action on private plaintiffs.
- We successfully opposed an application for certiorari in the earlier case Pono v. Molokai Ranch, Ltd., a case involving issues similar to as Ala Loop Homeowners.
- Our summary of the Robinson v. Ariyoshi water rights litigation. Fifty years and counting.
- Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006), the case in which the Hawaii Supreme Court, in the context of an attorneys’ fees shifting argument, concluded that Hawaii water law is not a federal issue by virtue of section 5 of the Admissions Act.
- The recently-filed HAWICA appeal appeal in the latest case involving east Maui water, asserting that the appellants are entitled to a chapter 91 contested case when the Water Commission amends interim instream flow standard.