Yesterday, on behalf of the Land Use Research Foundation of Hawaii, we filed this brief amicus curiae in the U.S. Supreme Court in Maunalua Bay Beach Ohana 28 v. Hawaii, No. 10-331 (cert. petition filed Sep. 7, 2010).
This is the case in which the Hawaii Intermediate Court of Appeals concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that "Act 73,", 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.
This brief focuses on two issues.
First, the right to accretion is a present property interest protected by the Fifth and Fourteenth Amendments from uncompensated legislative redefinition as public property. This right is not limited merely as accreted land in existence on the day the legislature adopted Act 73, and the Hawaii court strayed far afield from established Supreme Court precedent when it concluded that the only property interest protected by the Constitution was the land already accreted.
Second, the brief provides context to the Hawaii court’s decision and how it reached its conclusion, by summarizing the decades-long experiences of Hawaii’s property owners, who have seen their established common law property rights eroded into public property. This case is only the latest example.
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