Amicus Curiae Brief — Bridge Aina Le'a, LLC, Petitioner v. Hawaii Land Use Commission

Case No. 20-54

IN THE

Supreme Court of the United States

BRIDGE AINA LE ‘A, LLC,

Petitioner,

v.

STATE OF HAWAII LAND USE COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

BRIEF OF MATTEONI, O’LAUGHLIN &

HECHTMAN AS AMICI CURIAE IN SUPPORT OF

PETITIONER

Norman E. Matteoni *

* Counsel of Record for Amici Curiae

Gerald Houlihan

Matteoni, O’Laughlin & Hechtman

848 The Alameda

San Jose, CA 95126

Tel: (408) 293-4800

norm@matteoni.com

gerry@matteoni.com

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TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT..................................... 2

ARGUMENT........................................................................ 3

I.

TEMPORARY TAKINGS ARE ENTITLED TO

FIFTH AMENDMENT PROTECTION .................... 3

II.

TEMPORARY REGULATOR TAKINGS

LOGICALLY MUST TURN ON THE LOSS OF

ECONOMICALLY VIABLE USES ......................... 5

A.

LUCAS DOES NOT REQUIRE THE

PROPERTY BE LEFT WITH NO VALUE .... 7

III.

PENN CENTRAL’S “ECONOMIC IMPACT”

ANALYSIS IS NOT SIMPLY A BEFORE AND

AFTER ANALYSIS OF THE REGULATED

PROPERTY’S VALUE ........................................ 10

IV.

THE JURY, NOT THE COURT, DECIDES IF

THE FACTS SUPPORT A TAKING UNDER

LUCAS AND PENN CENTRAL ........................... 12

V.

A TOKEN INTEREST WILL NOT DEFEAT

A LUCAS CLAIM ............................................ 15

CONCLUSION .................................................................. 16

ii

TABLE OF AUTHORITIES

PAGE

Cases

Arkansas Game and Fish Commission v.

United States, 568 U.S. 23 (2012) ................................. 3, 9

Bridge Aina Le’a, LLC v. State of Hawaii

Land Use Comm’n, 950 F.3d 610 (9th Cir. 2020) ..... passim

Bridge Aina Le’a, LLC v. State of Hawaii Land Use

Commission (U.S. Dist. Court for Dist. of Hawaii)

2018 U.S. Dist. Lexis 107583 .................................. 11, 13

City of Monterey v. Del Monte Dunes,

526 U.S. 687, 720-721 (1999) .......................................... 12

Del Monte Dunes at Monterey, Ltd. v. City of Monterey,

95 F.3d 1422 (9th Cir. 1996) ................................................ 9

DW Aina Le'a Dev., LLC v.

Bridge Aina Le'a, LLC, 339 P.3d 685 (2014) ................. 11

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

482 U.S. 304 (1987) ........................................................ 3, 4

Kimball Laundry Company v. United States,

338 U.S. 1 (1949) ............................................................ 3, 6

Kirby Forest Indus., Inc. v. United States,

467 U.S. 1, 104 S. Ct. 2187 (1984)..................................... 16

Knick v. Township of Scott,

139 S.Ct. 2162 (2019) ......................................................... 4

Lingle v. Chevron, U.S.A., Inc.,

544 U.S. 528 (2005) .................................................... 7, 8, 9

iii

Lost Tree Village Corp. v. United States,

787 Fd.3d 1111 (Fed. Circ. 2015) .......................... 7, 14, 16

Lucas v. South Carolina Coastal Commission,

505 U.S. 1003 (1992) ................................................ passim

Murr v. Wisconsin,

137 Sup. Ct. 1933 (2017) ................................................... 5

Olson v. United States,

292 U.S. 246 (1934) .......................................................... 14

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .......................................................... 15

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) .................................................. passim

Pennsylvania Coal v. Mahon,

260 U.S. 393 (1922) ........................................................ 5, 9

Pewee Coal Company v. United States,

341 U.S. 114 (1951) ............................................................ 3

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) .............................................. 4, 7, 9, 12

United States v. 50 Acres of Land,

469 U.S. 24, 105 S. Ct. 451 (1984)..................................... 16

United States v. Fuller,

409 U.S. 488, 93 S. Ct. 801 (1973)..................................... 16

United States v. General Motors Corp.,

323 U.S. 373 (1945) ............................................................ 3

Constitutional Provisions

U.S. CONST., FIFTH AMENDMENT ...................................... i, 3, 8

U.S. CONST., SEVENTH AMENDMENT ................................... 15

1

INTEREST OF THE AMICI CURAE1

Amici are attorneys practicing law in the state of

California. The firm’s emphasis is on eminent domain,

inverse condemnation, and land use. The firm principal,

Norman E. Matteoni, is the primary author of California’s

Continuing Education of the Bar publication, Condemnation

Practice in California, published annually since 1973.

Amici

represent clients who have meritorious

regulatory takings claims. Moreover, amici are familiar with

the litigation of inverse condemnation cases and the factintensive nature of this inquiry. Accordingly, amici bring a

practical as well as a legal perspective to the systemic

imbalances that preclude an injured party from presenting a

meritorious claim, to protecting their federally protected

property rights.

Amici write this brief because a grant of review and

reversal in this case will eliminate the chilling effects by this

ill-considered opinion of the Ninth Circuit which effectively

precludes any temporary regulatory taking claimant from

being successful. Landowners and courts need guidance on

how to apply Lucas and Penn Central.

Counsel for the parties did not author this brief in whole or in

part. No person or entity, other than the amici, made monitory

contribution to the preparation and submission of this brief. The

parties have consented to the filing of amicus briefs in connection

with the petition for certiorari, and they filed letters reflecting

consent, with the clerk. Notice was provided to the respondent

that amice would be filing this brief.

1

2

SUMMARY OF THE ARGUMENT

Regulatory takings jurisprudence is a confusing

jumble and owners and regulators alike need guidance. The

Ninth Circuit Court of Appeal’s Opinion in Bridge Aina Le’a,

LLC v. State of Hawaii Land Use Comm’n, 950 F.3d 610 (9th

Cir. 2020) exemplifies the confusion surrounding regulatory

takings and offers an excellent vehicle to provide needed

clarifications concerning Lucas v. South Carolina Coastal

Commission, 505 U.S. 1003 (1992), Penn Central Transp.

Co. v. New York City, 438 U.S. 104 (1978), and the role of

the jury.

In reversing the jury determination that a taking had

occurred under Lucas and Penn Central, the Ninth Circuit

misinterpreted this Court’s regulatory jurisprudence. First

the decision erroneously contends that a taking pursuant to

Lucas is, as a matter of law, impossible if the affected

parcel retains any

- - value. The emphasis on value as

opposed to economically beneficial use of the land is

illogical and effectively forecloses a Lucas taking. The

similar misplaced focus on value results in the Ninth

Circuit’s adoption of a bright line formulaic short cut that

undercuts the required analysis of Penn Central.

Ultimately, the Ninth District usurped the role of

the jury and re-weighed the evidence and overturned the

jury verdict that followed an eight-day jury trial.

Inexplicably the Ninth Circuit found economically viable

uses remained after the Reversion Order even though

there was no evidence introduced at trial that any of the

uses were economically viable.

If the categorical rule of Lucas or the ad hoc test of

Penn Central is to have any meaning then factual

3

analysis by the jury and court must be tethered to the

evidence introduced at trial, not conjecture or speculation

by the reviewing court of what uses or value the land

might still possess.

ARGUMENT

I.

Temporary Takings Are Entitled to Fifth

Amendment Protection

This Court’s decisions have consistently confirmed

that the Fifth Amendment does not differentiate between

temporary or permanent takings. The cases resulting

from the United States efforts in World War II requiring

the government to pay for temporary possession of

properties are examples. See Pewee Coal Company v.

United States, 341 U.S. 114 (1951); Kimball Laundry

Company v. United States, 338 U.S. 1 (1949); United

States v. General Motors Corp., 323 U.S. 373 (1945).

The Court has consistently rejected the contention

the government action complained of must be possessory

or permanent to rise to the level of a taking. First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 318-319 (1987)

[taking during period prior to invalidation of ordinance

requires compensation]; Arkansas Game and Fish

Commission v. United States, 568 U.S. 23, 32 (2012)

[government induced flooding though temporary in

nature was not exempt from the takings clause].

Moreover, once the government’s actions have

worked a taking of property no subsequent action by the

government can relieve it of the duty to provide

compensation for the period during which the taking was

4

effective. First English Evangelical Lutheran Church of

Glendale, 482 U.S. at 318-319; see also Knick v. Township

of Scott, 139 S.Ct. 2162, 2171-2173 (2019) [a later

payment of compensation may remedy the constitutional

violation that occurred at the time of the taking, but that

does not mean the violation never took place].

Finally, nothing in Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535

U.S. 302 (2002) precludes a temporary regulatory taking:

“We do not hold that the temporary nature of a

land use restriction precludes finding that it affects

a taking; we simply recognize that it should not be

given exclusive significance one way or the other.”

535 U.S. at 337.

Despite this Court’s recognition that temporary

takings are not conceptually different than permanent

takings, the Ninth Circuit decision effectively creates a

new “categorical” rule that Lucas liability can never

attach to a temporary taking if the property has any

residual value. Bridge Aina Le’a, 950 F.3d at 627-628

[there is no Lucas liability for less than the total

deprivation of value]. The focus on residual value as

opposed to loss of economical use is illogical since land

will always have ---some value. The Ninth Circuit decision

effectively precludes any temporary regulatory takings by

relying exclusively on residual value of the property.

5

II.

Temporary Regulatory Takings Logically

Must Turn on the Loss of Economically Viable

Uses.

This Court’s regulatory taking jurisprudence

recognizes if a regulation goes too far it will be a taking.

Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).

One of the standards enunciated by this Court for

determining whether a government regulation results in

a taking was identified in Lucas where the Court

determined that “with certain qualifications . . . a

regulation which denies all economically beneficial or

productive use of land will require compensation under

the takings clause.” 505 U.S. at 1015. “By declaring that

the denial of all economically beneficial use of land

constitutes a regulatory taking, Lucas stated what is

called a “categorical rule”.” Murr v. Wisconsin, 137 Sup.

Ct. 1933, 1943 (2017).

Despite the express “economically beneficial or

productive use” standard of Lucas, the Ninth Circuit

focused on the residual value of the parcel under the

agricultural use classification and found “that any

diminution in value was less than the land’s total value.

. . . Absent more, there is no Lucas liability for less than

a total deprivation of value.” Bridge Aina Le’a, LLC v.

State of Hawaii Land Use Comm’n, 950 F.3d 610-627 (9th

Cir. 2020). The Ninth Circuit holding is directly contrary

with this Court’s express standard that a loss of all

beneficial use of the property, not loss of all value, results

in a Lucas categorial taking.

Conceptually, using residual value makes no sense

in the temporary takings realm whether that taking is

6

based on a Lucas analysis or requires analysis under

Penn Central. (See Section III below for further

discussion of Penn Central.) Property that is subject to

an improper regulation and then has the regulation lifted

will always have some residual value to some speculator.

Focusing on residual value effectively immunizes public

entities from any liability for temporary takings. This

Court observed this effect and rejected such an outcome

with regard to just compensation in Kimball Laundry,

338 U.S. at 7:

“Indeed, if the difference between market

value of the fee on the date of taking and that on

the date of return were taken to be the measure,

there might frequently be situations in which the

owner would receive no compensation whatever

because the market value of the property had not

decreased during the period of the taker’s

occupancy.”

In Lucas, the deprivation of beneficial use was for

only two years (Lucas at 1011-1012), yet this Court

focused on loss of use for those two years not whether

there was residual value in the parcel. The Lucas’s loss

of their property for two years is conceptually no different

than Kimball Laundry in that the owner has lost all use

of the property for a period of time. Yet this Court did not

first analyze whether Kimball Laundry retained any

residual value before compensation would be due.

Finally, the Ninth Circuit’s “residual value”

approach conflicts with the Federal Circuit’s

determination that Lucas does not require focusing solely

on market value and residual resale value is not

7

sufficient to prevent a taking. Lost Tree Village Corp. v.

United States, 787 Fd.3d 1111, 1117-1118 (Fed. Circ.

2015).

A.

Lucas Does Not Require the Property Be

Left with No Value.

The Ninth Circuit relied on imprecise language

from Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)

and Tahoe-Sierra to support the conclusion that “loss of

value is the determinative factor” in the Lucas analysis.

Bridge Aina Le’a, 950 F.3d at 627. However the quoted

language in both Lingle and Tahoe-Sierra cites to Lucas

as the authority for that proposition. A review of Lucas,

however, establishes the proper inquiry is not whether

some residual value remains but whether there remains

any economically viable uses.

Turning first to Tahoe-Sierra Justice William

Rehnquist, in his dissent, correctly identified the majority

was improperly characterizing Lucas as being concerned

fundamentally with value rather than with the denial of

“all economically beneficial or productive use of the land”.

Tahoe-Sierra, 535 U.S. at 350 (Rehnquist, C.J.,

dissenting). Justice Rehnquist thoroughly detailed how

Lucas repeatedly discusses its holding as applying where

no productive or economically beneficial use of the land is

permitted:

“Total deprivation of beneficial use is, from the

landowner’s point of view, equivalent of physical

appropriation.” Id. [quoting Lucas, 505 U.S. at

1017];

8

“The Fifth Amendment is violated when landuse regulation . . . denies an owner economically

viable use of his land.” Id. [quoting Lucas, 505 at

U.S. 1016];

“The functional basis for permitting the

government, by regulation, to effect property values

without compensation . . . does not apply to the

relatively rare situations where the government

has deprived a landowner of all the economically

beneficial uses.” Id. [quoting Lucas, 505 U.S. at

1018];

“The fact that regulations leave the owner of

land without economically beneficial or productive

options for its use . . . carry with them a heightened

risk that private property is being pressed into

some form of public service.” Id. [quoting Lucas,

505 U.S. at 1018];

“When the owner of real property has been

called upon to sacrifice all economically beneficial

uses in the name of the common good, that is to

leave his property economically idle he has suffered

a taking.” Id. [quoting Lucas, 505 U.S. at 1019].

Similarly, the Ninth Circuit cited Lingle for support

that residual value is the “determinative factor” in a

Lucas analysis. Bridge Aina Le’a, 950 F.3d at 627. But

the full citation made by Justice O’Connor in Lingle does

not support that conclusion:

“In the Lucas context, of course, the complete

elimination of a property’s value is the

determinative factor.” See Lucas, 505 U.S. at

1017. Positing that “Total deprivation of

9

beneficial use is, from the landowner’s point of

view, the equivalent of a physical appropriation.”

Lingle, 544 U.S. at 539-540.

Justice O’Connor’s citation is to Lucas’s statement

regarding beneficial use and does not address residual

value at all. Moreover, earlier in Lingle, Justice

O’Connor described the categorical rule enunciated in

Lucas to be triggered by a regulation that completely

deprived an owner of all economically beneficial use of the

property. Lingle, 544 U.S. at 538.

In summary, Lucas does not provide authority for

the statements in Tahoe-Sierra and Lingle that residual

value is the determinative factor. Lucas focuses on

economically beneficial uses. See, Arkansas Game & Fish

Comm’n v. United States, 586 U.S. 23 at 32 (2012) [Lucas

taking where owner is required to “sacrifice all

economically beneficial uses].

A loss of beneficial use approach is supported by

Pennsylvania Coal v. Mahon 260 U.S. 393 (1922), where

the regulation was a taking because it was “commercially

impracticable” to mine the coal (260 U.S. at 414).

Similarly Penn Central focused on whether the regulation

prevented the owner from a profit or earning a reasonable

return on its property (438 U.S. at 136).2

The Ninth Circuit prior to Tahoe-Sierra and Lingle found that

“[f]ocusing the economically viable use inquiry solely on market

value or on the fact that a landowner sold his property for more

than he paid . . . is inappropriate.” Del Monte Dunes at Monterey,

Ltd. v. City of Monterey, 95 F.3d 1422, 1432-1433 (9th Cir. 1996).

2

10

This Court needs to provide guidance that the

proper consideration in Lucas is economically viable uses

not value.

III.

Penn Central’s “Economic Impact” Analysis is

Not Simply a Before and After Analysis of the

Regulated Property’s Value.

The Ninth Circuit compounds its erroneous

emphasis on residual value in Lucas with an erroneous

interpretation of how to analyze the economic impact of a

regulation under Penn Central. In effect the Ninth

Circuit uses an almost identical test for both analyses—is

the residual value of the land virtually zero—and ignores

any other considerations. Bridge Aina Le’a, 950 F.3d at

630-631 [economic impact is determined by comparing the

value that has been taken from the property with the

value that remains in the property]. As noted previously,

temporary takings analysis is particularly ill-suited for a

residual value consideration because this approach has

the practical effect of precluding all temporary takings

since the property will have value once the regulation is

removed. (See pp. 5-6 ante.)

The Ninth Circuit’s limitation of the analyses of the

economic impact of the regulation to solely residual value

is not supported by Penn Central. In Penn Central this

Court upheld a New York City Landmark Ordinance on

two grounds -- First, the law “permitted” and

“contemplated” the continued use of the property as a rail

station. Secondly, the record indicated that after

imposition of the regulation Penn Central was able to

11

both “profit” and “obtain a reasonable return”. Penn

Central, 438 U.S. at 136. Neither of these grounds

focused on the before and after value of the regulated

parcel.

Conversely, the Reversion Order in the present

case precluded Bridge Aina Le’a from continuing the

existing use of the property for residential purposes even

though residential units had been partially or completely

constructed.3 Evidence at trial indicated that the limited

residential uses and other permitted uses available under

the agriculture classification were not profitable. Bridge

Aina Le’a, LLC v. State of Hawaii Land Use Commission

(U.S. Dist. Court for Dist. of Hawaii) 2018 U.S. Dist.

Lexis 107583 at 25-26. Unlike Penn Central, there is no

question the Reversion Order interfered with the existing

use of the property and precluded Aina Le’a’s ability to

earn a “profit” and “obtain a reasonable return”.

The Ninth Circuit never addresses these facts and

relied on the Court’s own analysis of the remaining value

as the determinative factor. Ironically, the Ninth Circuit

has adopted the very “bright line test” that this Court

expressly eschews in determining regulatory takings

under Penn Central.

If Penn Central is to serve any purpose then it must

be interpreted to require a court to conduct a thorough ad

hoc analysis turning on the individual facts of each case.

This investment was not inconsequential as the Hawaii

Supreme Court determined substantial use and construction

had commenced and Aina Le’a had spent more than

$20,000,000 on the development. See DW Aina Le'a Dev., LLC

v. Bridge Aina Le'a, LLC, 339 P.3d 685, 712 (2014).

3

12

For this individualized fact finding to have any

meaningful effect it is critical this Court reject the

formulaic, one size fits all approach of before and after

market value that the Ninth Circuit and other courts

have adopted for determining the economic impact of the

regulation.

IV.

The Jury, Not the Court, Decides if the Facts

Support a Taking under Lucas and Penn

Central.

This Court consistently reiterates regulatory

takings law is characterized by “ad hoc, factual inquiries,

design to allow careful examination and weighing of all

the relevant circumstances”. Tahoe-Sierra, 535 U.S. at

322.

City of Monterey v. Del Monte Dunes, 526 U.S. 687,

720-721 (1999), held that “the issue whether a landowner

has been deprived of all economically viable use of [the]

property is a predominantly factual question.” The same

logic would apply to assessing the Penn Central factors

which are predominantly factual determinations.

In the present case, the jury spent eight days

learning the facts of the case as well as assessing the

credibility of the witnesses. In other words, the jury

conducted an extensive ad hoc analysis far in excess of

what a reviewing court can accomplish on appeal. There

is no disagreement that the jury was properly instructed

on the law. Ultimately the jury determined there was no

evidence of any economically viable use of the property

under Lucas and that the Penn Central factors weighed in

favor of a taking.

13

Yet, the Ninth Circuit held a reasonable jury could

not have reached these conclusions. A review of the case

reveals, however, that the Ninth Circuit’s conclusions are

not supported by the evidence.

The Ninth Circuit concluded there were various

uses available under the new agricultural classification

that preclude a finding of all loss of use under Lucas.

Bridge Aina Le’a, 950 F.3d at 630. The Ninth Circuit’s

conclusion ignored the fact the Land Commission “put

forth no evidence concerning the economic viability of any

alternative use”. Bridge Aina Le’a, LLC v. State of

Hawaii Land Use Commission (U.S. Dist. Court for Dist.

of Hawaii) 2018 U.S. Dist. Lexis 107583 at 21-22. The

owners on the other hand, put on evidence that none of

the permitted agriculture uses would be economically

viable. Id. at 22. Quite simply, the Ninth Circuit had no

evidence in the record to determine that any economically

viable uses remained.

Incredibly the Ninth Circuit actually opined that

“some of the specially permitted uses may have been

especially suited for this land” (Bridge Aina Le’a, 950

F.3d at 630) when there was zero evidence introduced on

the subject (Bridge Aina Le’a, 2018 U.S. Dist. Lexis

107583 at 21-22) [state failed to “present any evidence

concerning the economic viability of potential unusual

uses”]. If the land was so suitable for these special uses

why did the Land Commission fail to present such

evidence to the jury? Additionally, the Ninth District’s

conjecture was inappropriate as “speculative land uses

are not considered as part of the takings inquiry.” Lost

14

Tree, 787 F.3d at 1118 referencing Olson v. United States,

292 U.S. 246, 257 (1934).

The Ninth Circuit’s conclusion that the landowner

retained beneficial uses also ignored reality. There was

credible evidence that the motivation for the

Commission’s reversion decision had nothing to do with

preserving agricultural uses of what was a lava field.

Bridge Aina Le’a, 950 F.3d at 636. Rather the

Commission hoped the reversion “would encourage [the

owner] to sell the property so that a new developer could

make a new proposal suggesting that Bridge could have

sold the land in a competitive market with a possibility of

a regulatory change.” Id. at 630.

The Ninth Circuit finding that there were

beneficial uses under the agricultural classification when

the public entity itself had no intention to allow an

agricultural use is a factual and legal absurdity. It was

reasonable for the jury to conclude that the Commission

would be unwilling to consider any use proposed by the

very landowner the Land Commission wished to jettison.

Similarly, in reweighing the facts before the jury on

economic impact under Penn Central, the Ninth Circuit

found dispositive its own calculation focused solely on a

before and after analysis of the market value. This

formulaic approach ignored all the other evidence the jury

considered on the issue of economic impact on the

landowner.

There was sufficient evidence for a jury to have

reasonably determined the issues in this case under

Lucas and Penn Central. The fact the Ninth Circuit

15

panel might have weighed the evidence differently is not

a sufficient basis to render a jury’s verdict unreasonable.

The Ninth Circuit’s legal contortions to evade the jury’s

determinations is contrary to the Seventh Amendment’s

“Redetermination Clause” and review should be granted

to reaffirm the importance of the jury in regulatory

takings cases.

V.

A Token Interest Will Not Defeat a Lucas

Claim.

A government entity “may not evade the duty to

compensate on the premise that the landowner is left

with a token interest.” Palazzolo v. Rhode Island, 533

U.S. 606, 631 (2001). The facts of the case are sufficient

for the jury to have determined Bridge Aina Le’a was left

with nothing but a token interest. While the Ninth

Circuit properly acknowledged the law, it misapplied the

law in determining Bridge Aina Le’a had more than a

“token interest” for the years the regulation was in place.

The Ninth Circuit recognized the District Court

concluded that the jury heard credible testimony that the

Commission’s sole purpose was to cause Bridge Aina Le’a

to sell the property and that this was the first time in the

Commission’s 50-year history that the Commission had

ordered a reversion. Palazzolo, 533 U.S. at 636.

Accordingly, this is not the typical case where a

change in zoning classification is undertaken with the

expectation by the regulatory body to preserve the

property for future generations i.e. preserve the land for

agricultural uses. Nor is this like Penn Central where the

landmark designation did not interfere with the existing

16

use of the property. Penn Central, 438 U.S. at 136.

Rather, the sole purpose of the Reversion Order was to

force Bridge Aina Le’a to sell the property so someone

else who would in turn develop the property as

residential not an agricultural use.

The jury had sufficient evidence to conclude that the

only permissible use the Land Commission envisioned or

intended was a forced sale and nothing more. After all, the

Land Commission believed the Reversion Order would force

a sale, why couldn’t the jury agree? Moreover, Lost Tree,

783 F.3d at 1117, recognized “[w]hen there are no

underlying economic uses, it is unreasonable to define

land use as including the sale of the land. Typical economic

uses enable a landowner to derive benefits from land

ownership rather than requiring a landowner to sell the

affected parcel. See, e.g., Kirby Forest Indus., Inc. v. United

States, 467 U.S. 1, 104 S. Ct. 2187, 81 L. Ed. 2d 1 (1984)

(logging); United States v. 50 Acres of Land, 469 U.S. 24, 105

S. Ct. 451, 83 L. Ed. 2d 376 (1984) (landfilling); United

States v. Fuller, 409 U.S. 488, 93 S. Ct. 801, 35 L. Ed. 2d 16

(1973) (livestock grazing).”

Contrary to the Ninth Circuit’s decision the right to

sell is not an economically viable use sufficient to defeat a

Lucas claim. See Lost Tree, 787 F.3d at 1117-1118. The jury

was right when it determined that Bridge possessed nothing

more than a token interest.

CONCLUSION

This Court recognizes that a regulation can effect a

taking. Yet, landowners face a herculean task of

prevailing as the tests in Lucas and Penn Central can be

17

(and have been) manipulated to ensure that the owner

always loses. To then allow a reviewing court to make

determinations on economically viable uses without any

evidence supporting the economic viability of the uses,

substitutes the reviewing court’s opinion for the jury’s

reasoned determination. This Court needs to provide

guidance so owners and regulators understand the proper

contours of regulatory takings jurisprudence. The

Petition for Certiorari should be granted to rectify the

errors below and to provide guidance on these issues.

Dated: August 21, 2020

Respectfully Submitted,

Norman E. Matteoni

Counsel of Record

Gerald Houlihan

Matteoni, O’Laughlin & Hechtman

848 The Alameda

San Jose, CA 95126

Tel: (408) 293-4300

norm@matteoni.com

Counsel for Amici Curiae Matteoni, O’Laughlin & Hechtman