NO. 28175 – Tuesday, November 10, 2009 – 9 a.m.

MAUNALUA BAY BEACH OHANA 28, a Hawai`i Non-Profit Corporation; MAUNALUA BAY BEACH OHANA 29, a Hawai`i Non-Profit Corporation; and MAUNALUA BAY BEACH OHANA 38, a Hawai`i Non-Profit Corporation, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, vs. STATE OF HAWAI`I, Defendant-Appellant.

Attorney(s) for Defendant-Appellant
Honorable Mark J. Bennett, Attorney General and Girard D. Lau and William J. Wynhoff, Deputies Attorney General, State of Hawai`i

Attorney(s) for Plaintiffs-Appellees
Paul Alston and Laura P. Couch

COURT: Nakamura, CJ; Watanabe and Foley, JJ.

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

Prior to 2003, an owner of oceanfront lands in Hawai`i could apply to register title in the Land Court, or bring an action to quiet title, to adjoining land formed by accretion, provided that the owner could “prove by a preponderance of the evidence that the accretion is natural and permanent.” Hawaii Revised Statutes (HRS) §§ 501-33 (1993) and 669-1(e) (1993). To be “permanent,” the accretion must have been in existence for at least twenty years.

In 2003, the Hawai`i State Legislature passed a bill which the Governor signed into law as Act 73, which amended various statutes to provide that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be “public lands.”

Plaintiffs-Appellees Maunalua Bay Beach Ohana 28, Maunalua Bay Beach Ohana 29, and Maunalua Bay Beach Ohana 38 (collectively, Plaintiffs) are Hawai`i non-profit corporations formed by homeowners in the Portlock area of O`ahu. In 2005, Plaintiffs purchased from the Bishop Estate a narrow strip of land between oceanfront homes in Portlock and the ocean.
On May 19, 2005, Plaintiffs filed this inverse condemnation lawsuit on behalf of themselves and all owners of oceanfront property in Hawai`i (oceanfront owners), asserting that Act 73 (1) took oceanfront owners’ right to claim accreted land and declared all such land to be “state land”; (2) took from oceanfront owners their property rights in (a) all accreted oceanfront land which existed on May 20, 2003 and which had not previously been registered or been made the subject of then-pending registration proceedings, and (b) all future accretion which was not proven to be the restored portion of previously accreted land; (3) damaged oceanfront owners’ remaining property by depriving them of ownership of the land abutting the ocean; and (4) damaged all accreted lands by placing them in the conservation district.

Plaintiffs sought just compensation, blight damages, a declaratory judgment that Act 73 was unenforceable under the Hawai`i Constitution unless and until the State pays just compensation to Plaintiffs and the class they represented, and an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73.

The circuit court granted Plaintiffs’ motion for partial summary judgment on Plaintiffs’ claim for injunctive relief to bar enforcement of Act 73 “unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings.” This interlocutory appeal followed.