Final Briefs In In Hawaii Beach Taking Case: Is "Future" Accretion A Present Property Interest?

Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that "Act 73" (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court - see below].

In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called "future accretions."

The court held that because "future" accretion might never happen, the State could acquire it without first paying compensation. Maunalua Bay, 122 Haw. at 53, 222 P.3d at 460. The ICA accepted the State’s argument that Act 73 did not affect a taking of future accretion, because the right is simply a contingent future interest. The ICA concluded,"any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions." Id.

On April 26, 2010, the State filed its own application for writ of certiorari which asked the Supreme Court to review and reverse the ICA's conclusion that Act 73 was a taking of pre-2003 accreted lands, and last week filed its opposition to the property owner's application.

So here's the state of the briefing so far:

• The littoral property owners' application for a writ of certiorari (April 22, 2010)

• State of Hawaii's opposition (May 10, 2010)

• Pacific Legal Foundation's brief amicus curiae (May 13, 2010)

• State of Hawaii's application for writ of certiorari (Apr. 26, 2010)

• Property owners' opposition to State's application for cert (May 11, 2010)

Next up: a decision by the court on whether to accept or reject either (or both) of the cert applications. Stay tuned.