Hawaii: Permit Conditions Not Subject To Nollan/Dolan When There's No Taking Claim

by Robert Thomas, InverseCondemnation, June 25, 2024

A short one (for us takings types) from the Hawaii Supreme Court.

In In re Surface Water Use Permit Applications, No. SCOT-21-0000581 (June 20, 2024), the court considered a challenge to the State of Hawaii Commission on Water Resource Management's authority to impose conditions on a water permit. The applicant asserted that the nexus and proportionality requirements of Nollan and Dolan must have been complied with.

No, the court concluded, those standards only apply where there's a takings claim present. And there's no takings claims here:

WWC relies on Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), to argue that any conditions the Commission attaches to its SWUP for system losses must relate to those losses. WWC attempts to frame Nollan and Dolan as providing a “clear statement of the unconstitutional conditions doctrine,” but fails to specify which constitutional provisions the conditions violate and of which constitution. Nollan and Dolan specifically apply to takings claims. WWC is not asserting a taking. Thus, WWC’s reliance on them necessarily fails.

Of course, the Commission cannot condition SWUPs on anything it wishes; as WWC states, those conditions must relate to the Commission’s jurisdictional powers. That is the applicable limit on the Commission’s powers – not Nollan and Dolan. And as explained above, the conditions here are within the Commission’s broad jurisdictional powers to implement and administer all aspects of the Water Code.

Slip op. at 129-130 (footnotes omitted).

How can we call a 134-page opinion "short?" Well, the good stuff is only at the tail end, and only a couple of pages long, and was just one sidebar issue in a whole panoply of arguments.

What about the rest of it? No surprises there: like many Hawaii Supreme Court opinions on water rights and the public trust, it is is gargantuan, detailed, and the Commission fares no better in this case than it does in practically every other case it is involved in in this court (it loses).

Unless you fancy yourself a 808 water rights maven, you can skip all but the good stuff.

PDF: In re Surface Water Use Permit Applications, SCOT-21-0000581 (Haw. June 20, 2024)

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