HAWSCT Denies Cert In Beach Accretion Case

Today, by a 3-2 vote, the Hawaii Supreme Court declined 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 filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

In Act 73, the Hawaii 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.

Both the property owners and the State sought Supreme Court review.

Here's the court's order denying review, and Justice Acoba's dissent (joined by Justice Duffy). More about the case here (includes the cert applications and amicus briefs).