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CIRCUIT COURT FINDS LAW RESTRICTING BEACHFRONT LANDOWNERS’ OWNERSHIP OF ACCRETION WAS AN ILLEGAL “TAKING.” STATE’S APPEAL NOW PENDING BEFORE THE HAWAI`I INTERMEDIATE COURT OF APPEAL

In 2003, the State of Hawai`i adopted Act 73, which prohibited all private landowners from claiming title to unregistered accretion — despite longstanding state and federal authority establishing that accreted land belongs to those landowners. In 2005, a class action lawsuit was filed challenging the law because it took private property without just compensation. In 2006, the First Circuit Court certified the case as a class action and ruled in the landowners’ favor and against the State of Hawai`i.

The Circuit Court found that Act 73 effected an uncompensated taking of private beachfront owners' land. According to the Circuit Court, if the State persists in declaring accreted land to be "public land," or prohibits the private beachfront owners from registering permanent accreted land adjacent to their property, it must pay compensation for the taking.

This ruling does not affect the public's right to enjoy the land makai of the dividing line between the public beach and the mauka private lands — regardless whether that line is defined by the vegetation line or the debris line. Further, environmental and other laws regulating beachfront landowners' use of their property are unaffected.

The State appealed the Circuit Court’s ruling. The issues have been fully briefed for the Intermediate Court of Appeal. No date for oral argument, if any, has been set, and the parties await the Intermediate Court of Appeal's decision on the matter.

Contact: Paul Alston, Esq. and Laura P. Couch, Esq. (Alston Hunt Floyd & Ing)
e-mail:  PAlston@ahfi.com
             LCouch@ahfi.com
telephone: 808-524-1800

 
 
 

Class Action Certified in Landowners' Case Against the State of Hawai`i for Taking Oceanfront Land.

The Hawai`i First Circuit Court recently granted class action status to a lawsuit filed by several beachfront landowners against the State of Hawai`i. The lawsuit seeks an injunction and damages against the State for taking their oceanfront land without compensation in violation of the Hawai`i Constitution.

In 2003, a law was enacted forbidding private beachfront owners from asserting their rights to land that forms through accretion, which is the process by which new land is formed gradually from the sea. The 2003 law reversed longstanding rules ?dating back more than 115 years ?under which oceanfront accretion belonged to the abutting landowner, not the Kingdom, the Territory or the State. The lawsuit asks the Court to rule that the 2003 law unlawfully takes private property without payment of just compensation, and that the State must either repeal the new law or pay shoreline owners for taking their property rights. Proceeding as a class action ensures that all beachfront landowners will benefit from the lawsuit. It is estimated that there are more than 20,000 landowners in the class.

The lawsuit does not challenge or affect environmental or other laws which regulate beachfront landowners' use of their property. Nor does it affect the public right to enjoy the public beach below the vegetation line or the debris line.

Paul Alston, counsel for the class, said:

The State tried to steal beachfront land worth tens of millions of dollars through an obscure law, instead of confronting the issue openly and fulfilling its constitutional duty to pay just compensation. Public beach ownership is a great thing, but the State's rights cannot be expanded by an illegal land grab. An earlier version of this law was vetoed because of concerns about its illegality; that was a warning to the State that it was doing wrong. We expect the Court will fully protect the landowners' rights.