Cert Denied In Hawaii Beach Taking Case

by Robert Thomas www.InverseCondemnation.com

The U.S. Supreme Court has declined to review Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). That's the case in which the Hawaii Intermediate Court of Appeals concluded that ownership of beachfront property includes only a partial right to accreted land.

The ICA held that held that "Act 73" (codifed here and here), the statute in which the Hawaii legislature redefined accretion as public property was a taking of existing accreted land, but held that Act 73 did not affect a taking of what it called "future" accretion, because the right is simply a contingent future interest and not a "vested" right. The Hawaii Supreme Court denied discretionary review.

Under the ICA's view of "unvested future interests," the legislature would be free to enact a statute abolishing the right to pass property to one's heirs at death, and that instead, upon a person's death, all of her property becomes public property. The interests of a person's potential heirs, after all, are not "vested," and (in the Hawaii court’s words) "may never materialize" because it is possible the heirs could be disinherited or could predecease the donor, before their interests vest. Thus, the theory goes, their rights are not "property" and the state may acquire them.

The denial of cert by the U.S. Supreme Court means that until the Hawaii Supreme Court confirms or rules otherwise in a future case, the ICA's rule that "unvested" rights or "contingent future interests" are not property and are subject to uncompensated acquisition by the legislature, is the law.

Disclosure: we filed a brief amicus curiae urging the Supreme Court to review the case.

Here's the order denying cert.

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LINK: ORIGINAL

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