Eminent Domain Report

For those who didn't get enough of littoral property rights, accretion, and avulsion in reading about this summer's Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, there is a new case making its way through the system. 

In Maunalua Bay Beach Ohana 28 v. State of Hawaii, the court analyzed a 2003 Hawaii law that had the effect of transferring ownership of property created by accretion to the state.   In a split decision, the Hawaii Court of Appeal held in 2009 that with respect to property that existed at the time the law went into effect, any transfer of ownership constituted a taking. 

However, with respect to any new property created through accretion after the law's enactment, the Court held that no taking would occur, because "any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions."

In June, the Hawaii Supreme Court declined to review the case, and the plaintiffs have now filed a Petition for Writ of Certiorari before the U.S. Supreme Court.   Whether the Supreme Court accepts the case remains to be seen, but as fellow eminent domain blogger Robert Thomas of Hawaii aptly notes, the case does have the potential to fill in some gaps left by the Florida beach case:

• Are future interests property, or can state legislatures confiscate them because they have not "vested?"
• If a state appellate court finds a statute constitutional only by changing long-standing state common law and makes a formerly private right public, is that a "judicial taking?"
• Are there some common law property interests that are so fundamental that a state court cannot alter them?

For more background on this interesting case, take a look at Mr. Thomas' September 8 post, Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A "Property" Interest?