Opposition Brief — Ariyoshi v. Robinson

oe eran ene

NO. 85-406 ee eee

ae 3 ERE ae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

GEORGE R. ARIYOSHI, GOVERNOR,

STATE OF HAWAII, et ail.,

Petitioners,

VS.

SELWYN A. ROBINSON, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF OF RESPONDENTS McBRYDE SUGAR

COMPANY, LIMITED, AND SMALL OWNERS

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

J. RUSSELL CADES, Counsel of Record

PHILIP J. LEAS

CADES SCHUTTE FLEMING & WRIGHT

P. O. Box 939

Honolulu, Hawati 96808

(808) 521-9200

Attorneys for

Respondent McBryde Sugar

Company, Limited

ROBERT B. BUNN, Counsel of Record

RICHARD R. CLIFTON

CADES SCHUTTE FLEMING & WRIGHT

P. O. Box 939

Honolulu, Hawaii 96808

(808) 521-9200

Attorneys for Respondent

Small Owners

EST AVAILABLE COPY

QUESTIONS PRESENTED

1. Do the federal courts have jurisdiction to protect against a

state courts uncompensated sua sponte taking of vested prop-

erty rights after the state court has refused to consider or decide

timely-made constitutional claims resulting from the taking?

2. Did the court below properly decline to give preclusive

effect to the final judgment of a state court insofar as the

judgment was tainted by the state court’s summary rejection of

all attempts by respondents to secure an opportunity to litigate

fairly their constitutional claims in a due process hearing?

3. Did the court below properly rule that respondents, by

their substantial expenditures and many years of reliance on

Territory v. Gay, 31 Haw. 376 (1930), aff'd, 52 F.2d 356 (9th

Cir.), cert. denied, 284 U.S. 677 (1931), acquired de jure

vested rights that cannot now be divested without just compen-

sation?*

*The listing of parent companies, subsidiaries and atfiltates required of

respondent McBryde Sugar Company. Limited. by Rule 28.1 of the Rules

of the Supreme Court was annexed to the Appearance Form previously

filed in this case on behalf of McBryde Sugar Company, Limited.

Typehouse “85

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .< 0. see eee 1

TABLE OF CONTENTS 5 33555505250 03 , ll

TABLE OF AUTHOREICS ix. 1V

STATEMENT OF THE CAs eee eee 2

|. This Federal Case Was Born in the Hawaii

Supreiae Cowst..’.... steer ee 3

2. The Hawaii Supreme Court Refused to Consider or

Decide the Constitutional Issues that Gave Birth

to this Federal Cose..5 Soe sen pa ee 5

3. The District Court and the Court of Appeals

Properly Acted to Declare and Protect Vested

Water Rights Belonging to Respondents ....... 7

a. District Coumt pRROOREER. 7 ee 7

b. Court of Appeals proceedings ............... 8

REASONS FOR DENYING THE WRIT ............. 10

1. The issues Raised by the Petition Are So Unusual

that They Are Untikely 0 Recer ............: 10

2. Review of this Case Would Result in an

Affirmance |. 65 «sts wean 1]

3. The Arguments Stated in the Petition Are Wrong

on Theit Merits . 2.5 Axase oes Gee eae 13

a. Feldman Does Not Apply to the Facts of this

Oe PPE eS ns tpi ane 13

b. This Case Has Nothing to Do with State

Regulatory Prmoceagea's.i ss 2 5 eee ee ee 15

c. The “*Rehearings Process’ Was No Substitute

for Due Process 6: GR SEs we 17

iil

TABLE OF CONTENTS

CONCLUSION ..... Retr te ae ae Giger arene 18

APPENDIX A. Motion to Dismiss Appeal from the

Supreme Court of Hawali

APPENDIX B. Partial List of Hawaii Cases Overruled

by McBryde

iV

TABLE OF AUTHORITIES

Page(s)

CASES

Aerojet-General Corp. v. Askew, 511 F.2d 710 (Sth

Cir.), appeal dismissed, cert. denied, 423 U.S. f

hn i, SRA Spay Be Saechre sre tel oem Er ae tary evento eo 17

Ake v. Oklahoma, 105 S. Ct. 1087 (1985) .......0..... 14

Brinkerhoff-Farris Co. v. Hill, 281 U.S. 673 (1930) ... 10

District of Columbia Court of Appeals v. Feldman, 460

OF. Me NE kk es ee hanes 11, 13, 14

Hughes v. Washington, 389 U.S. 290 (1967). 2.0.02... 10

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .... 3

Kremer v. Chemica! Constr. Corp., 456 U.S. 461

GU ais hoa ea eh Pe EEC Ee Tes 17

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) . 17

McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504

P.2d 1330. rehearing denied, 55 Haw. 260, 517 P.2d

26 (1973), appeal dismissed for want of jurisdiction,

cert. denied, 417 U.S. 962, 976 (1974) ........ passim

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. |

CED os oa suey aa eS Bee ed ee eee eoe 17

Robinson v. Artyoshi, 64 Haw. 641, 658 P.2d 287

DU 9-85 vn aoa a are g ean ae dae eet tine ae 9

Southwest Airlines Co. v.. Texas Internat'l Airlines, 546

F.2d 8&4 (Sth Cir.), cert. denied, 434 U.S. 832 (1977) 17

Territory v. Gay, 31 Haw. 376 (1930), aff'd, 52 F.2d

356 (9th Cir.). cert. denied, 284 U.S. 677

Norra rey eRe eats ee

Vitek v. Jones, 445 U.S. 480 (1980)... .........6.4.. 17

Vv

TABLE OF AUTHORITIES

Page(s)

STATUTES

ZOU S.C. fo USS ovens eee 7

28 USC. © RS. oo eee 7

28 US Oe oe ee 7

FO US.) 2a cee i ee eee 7

47 U.3.0..3 196) .635 on ee ee 7, 10

OTHER AUTHORITIES

Report of the Water Commissioner of the Territory of

Pinwall (997) oo. ccn sa eee eee 3

Hawaii Water Authority, Water Resources in Hawaii

Ce | ee ee er rd ELE hn 3

NO. 85-406

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

GEORGE R. ARIYOSHI, GOVERNOR,

STATE OF HAWAII, et al.,

Petitioners,

¥S.

SELWYN A. ROBINSON, e7 al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF RESPONDENTS McBRYDE SUGAR

COMPANY, LIMITED, AND SMALL OWNERS

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Respondents McBryde Sugar Company, Limited

(**McBryde**) and Small Owners! respectfully request that this

Court deny the petition for a writ of certiorar!.

'Ida Albarado, Helen B.H. Chu, Henry J. Chu, Chee Kung Fui Society,

Lapaz Francisco, Marcellino Francisco, Albert K. Kaailau, Linda P.

Katukapu, Ann N. Kali, Harriet U. Kano, Junichi Kano, Kiyoshi Kimata,

Arnold W.F. Leong, Katherine A. Leong, Lo Sun D. Leong, Tai Hing

Leong. Hanayo T. Naumu, Wallace A. Naumu, Hideo Nonaka, Hiromi

Nonaka, Iwao Nonaka, Kazuo Nonaka, Masatoshi Nonaka, Shigekichi

Nonaka, Takano Nonaka and Takao Nonaka.

to

STATEMENT OF THE CASE

McBryde has owned and operated a sugar company on the

Island of Kauai, Hawaii, since 1899. Although McBryde owns

significant land areas in the Hanapepe (Hahnahpaypay) Valley

on Kauai (App. 218a-219a, 235a-236a), the bulk of its ag-

ricultural land extends to the east of Hanapepe. Sugar cane

cultivation requires a substantial, continuous supply of water.

Ali but 300 of the 5,955 acres cultivated by McBryde on its

sugar plantation are irrigated. App. 83a. McBryde draws from

its sources in Hanapepe an average of 20 million gallons per

day. representing well over half of the irrigation supply for its

entire sugar plantation. /d. McBryde transports its Hanapepe

water through its private irrigation system for distances as far as

5'2 miles outside of Hanapepe Valley. /d.

While some of McBryde’s irrigation water comes from un-

derground sources, over half of itis diverted from the Hanapepe

River. /d. This case concerns McBryde's surface water rights.

Those rights consist of (1) appurtenant water rights and (2)

prescriptive water rights.

Appurtenant water rights are inherent in the ownership of

ancient taro lands and entitle the owner of those Jands to the

quantity of water that was used to grow taro on the lands in 1848

when the king transferred the lands into private ownership. The

ownership of appurtenant water rights can be severed from the

ownership of the ancient taro land itself. App. 76a, 88a, 92a-

95a, 235a-242a. Thus, McBryde's appurtenant water rights in

Hanapepe derive from its ownership of ancient taro lands, from

its reservation of the water rights from ancient taro lands that it

formerly owned and from water rights acquired from third

parties who retained title to their taro lands. App. 76a, 21 8a-

219a. Because taro cultivation has declined markedly and be-

cause taro requires far more water than sugar and other crops,

appurtenant water rights have considerable value for sugar and

other uses.

McBryde acquired prescriptive water rights by continuous

usage of stream waters in excess of its appurtenant water rights,

under a claim of adverse possession for the requisite statutory

period. App. 257a, 260a. Prescriptive water rights diminish the

share of water owned by other private parties, in this case Gay &

Robinson (**"G&R**) as owners of the normal surplus flow of the

Hanapepe streams.

Respondent Small Owners own ancient taro lands in

Hanapepe and thereby have appurtenant water rights. Those

water rights have value for their use on the land giving rise to the

rights or on other lands or for their salability to other water

users. App. 86a.

1. This Federai Case Was Born in the Hawaii Supreme

Court.

For decades prior to the McBryde? decision, there was no

dispute about the legai principles of Hawaiian surface water law

creating and governing the surface water rights discussed

above.* The case leading up to the McBryde decision originated

>McBryde Sugar Co. v. Robinson, 54 Haw. 174. 504 P.2d 1330, rehearing

denied, 55 Haw. 260, 517 P.2d 26 (1973): appeal dismissed for want of

jurisdiction, cert. denied, 417 U.S. 962, 976 (1974).

‘In fact. in March 1959 (the same month that McBryde commenced pro-

ceedings in state court for the determination of its water rights in

Hanapepe). the Hawaii Wate: Authority submitted the following report on

Hawaiian water law to the legislature in preparation for statehood:

Surface-water rights in Hawaii are considered property rights and can be

sold or acquired separately from the land to which they are appurtenant.

The lega! right in Hawaii to transport surface water from one watershed

to another, not permitted under riparian water law, has made it possible

to provide irrigation to Hawaii's water-deficient and generally better

arable lands and develop a sound agricultural economy. Extensive de-

velopments of surface water have been accomplished under Haw ali’s

existing surface-water rights law. It can be concluded that the many

court decisions have firmly established the principles of surface -water

rights in Hawaii. It does not seem likely that any legislation enacted to

materially alter existing surface-water rights law would be held con-

stitutional by Hawaii's courts nor does there appear any need at this time

for legislation to strengthen or change this system of surface- water law.

Hawaii Water Authority, Water Resources iti Hawaii 64-65 (1959), quoted

at App. 93a-94a. See also Report of the Water Cominission of the Territory

of Hawaii 19-20 (1917), cited at App. 94a & 130a- 132a. Cf. Kaiser Aetna

v. United States, 444 U.S. 164, 166 (1979) (**[ Hawaiian fishponds, have

always been considered to be private property by landowners and by the

Hawaiian government. ”’).

4

when G&R improved its upstream diversion system and, com-

mencing March 28, 1949, began withdrawing so much water

from the Hanapepe streams that the quantity remaining was

insufficient to satisfy the appurtenant and prescriptive water

rights of McBryde and the other downstream owners. App.

209a-210a. McBryde filed its action in the state court to deter-

mine and confirm its water rights and to enjoin G&R’s diversion

of waters belonging to McBryde. App. 216a-217a.

After several years of trial preparation, the trial in state court

lasted more than three months, as reflected in a transcript of

almost 3,500 pages plus voluminous exhibits. App. 60a. The

State of Hawaii actively participated to determine its own ap-

purtenant water rights in Hanapepe (including severed water

rights). All parties and the trial court accepted G&R’s owner-

ship of the normal surplus water (after allowance for

downstream appurtenant and prescriptive rights), as had been

decreed in Territory v. Gay, 31 Haw. 376 (1930), aff'd. 52

F.2d 356 (9th Cir.), cert. denied, 284 U.S. 677 (1931). App.

60a, 250a. All parties and the trial court similarly recognized

that water rights could be obtained by prescription, that water

rights could be severed from land ownership and that waters

could be freely transferred within and without the watershed of

origin. App. 60a, 204a-217a. The state trial court awarded

appurtenant water rights to McBryde, G&R, the State and the

Small Owners, and prescriptive water rights to McBryde, and

then awarded all surplus waters to G&R. App. 260a-26la.

On the appeals by McBryde, G&R and the State? to

the Hawaii Supreme Court, the parties raised many issues con-

cerning the correctness of the water quantities awarded by the

trial court, but there was no issue as to: (1) G&R°s ownership of

the normal surplus; (2) the severability and transferability of

water and water rights; or (3) the susceptibility of water rights

to prescription. The Hawaii Supreme Court affirmed the trial

*The Small Owners and Olokele Sugar Company, Limited (**Olokele**), did

not appeal or otherwise participate in the appellate proceedings before the

Hawail Supreme Court.

5

court’s quantification of the parties’ appurtenant water rights

but then proceeded sua sponte, without the benefit of anything

in the record® and contrary to a century of Hawaiian water law,®

to adopt a doctrine of riparian rights and to decree that: (1) the

State is the owner of all surface water, subject only to appurte-

nant water rights and the newly declared riparian rights, (2)

surface waters could not be diverted outside the watershed of

origin or separated from the land to which originally appurte-

nant, (3) there is no such thing as privately owned surplus water

and (4) because of the state ownership of water, McBryde could

have no prescriptive rights. App. 187a-199a.

2. The Hawaii Supreme Court Refused to Consider or

Decide the Constitutional Issues that Gave Birth to

this Federal Case.

McBryde and G&R filed timely motions for rehearing and

motions for an opportunity to present evidence and argument on

the constitutional claims engendered by McBryde. App. 62a,

353a. The Small Owners and Olokele, though not parties to the

appeal, separately moved to vacate the opinior and requested an

opportunity to present evidence. Exs. SC 59 & 61. The court,

without any filing by the State, summarily denied any oppor-

‘Justice Marumoto, dissenting. called the attention of the majority to the fact

that their ‘‘decision has no relation whatsoever to the judgment appealed

from in this case, and is neither within the issues raised and tried in the

circuit court nor within the questions presented and argued in this court.’

App. 189a. The issues reviewed and tried in the circuit court and argued in

the state supreme court appeal in no manner disputed the established

meaning of the facially irrelevant Stat. L. Kam HI 81-94 (1847) or 1850

Stat. L. 202-04 (referred to in Petition at 4, 10, 11, 12, 16).

The Hawaii Supreme Court simply overruled the great bulk of Hawaiian

water law with sweeping strokes, such as *‘any contrary indications in our

case law are overruled.’ App. 1 78a. We are at a loss to understand how one

could consider this process “‘slow,’” “‘cautious’’ or “‘piecemeal.”” as

characterized on page 5 of the Petition. Appendix B is aconservative listing

of the Hawaiian precedents summarily discarded by McBryde.

6

tunity to present evidence. The court did order a limited

rehearing’—confined to the briefing and argument of two

questions of state law formulated by the court—but summarily

rejected the private owners’ efforts to include the litigation of

constitutional claims in the rehearing. App. 4a-5a, 62a-63a.

The court also refused to permit a court reporter to record the

proceedings at the oral argument on the limited rehearing. App.

79a. Despite the parties’ concerted efforts to urge their federal

claims upon the Hawaii Supreme Court, that court steadfastly

rebuffed all such efforts and curtly stated: *‘After careful con-

sideration of the briefs and arguments presented at the rehear-

ing, we find no reason to change the decision filed herein. ”’

App. | 13a. The final judgment of the Supreme Court made no

provision for remand or further hearings.

When McBryde and the Small Owners then filed an appeal

and a petition for a writ of certiorari in this Court, the State of

Hawaii, represented by the same Attorney General’s office that

now represents the current petitioners, filed a motion to dis-

miss.* The Attorney General represented to this Court in his

motion that *“‘[t]he Federal questions sought to be reviewed

were neither timely nor properly raised nor expressly passed on

by the Courts of Hawaii,’’ App. A, at A-4, and that the

McBryde opinion *‘does not mention, discuss or pass upon any

Federal question.’ /d. at A-8. In the same vein, the Motion to

Dismiss, App. A, at A- 10, summarized the limited rehearing as

follows:

Oral argument was duly held limited to the issues specified

in the order of June 18, 1973 [Ex. SC 66]. On December 20.

1973, aper curiam affirmation of its prior opinion entered on

January 10, 1973, was entered by a majority of the Supreme

Court finding “‘no reason to change the decision filed

’The District Court found this limited rehearing to be “almost farcical.’

App. 96a.

“Reprinted in Appendix A to this brief. The Motion to Dismiss filed in this

Court is notably absent from petitioners’ Appendix. Petitioners” character-

ization of the Motion to Dismiss at page 14 n.21 of the Petition seriously

misrepresents the true substance of the motion.

r

herein.”’ [App. 113a] The per curiam affirmation of the

Supreme Court does not mention, discuss or pass upon any

Federal questions. [Emphasis added. }

The Attorney General argued on the basis of his statement of

facts that this Court lacked jurisdiction to review federal ques-

tions not decided by the state court. This Court apparently gave

credence to the Attorney General’s statement of facts and dis-

missed the appeal for want of jurisdiction. App. || la. 417 U.S.

962 (1974).

3. The District Court and the Court of Appeals Properly

Acted to Declare and Protect Vested Water Rights

Belonging to Respondents.

a. District Court proceedings.

Respondents instituted this action in federal district court to

protect their property rights from the uncompensated taking

decreed by McBryde, alleging jurisdiction under 28 U.S.C.

$§ 1331, 1343, 2201, and 2283, and 42 U.S.C. § 1983. The

evidence at trial (admitted largely by stipulation) included the

entire record of the McBryde case. That evidentiary submission

was necessary to prove the negative; namely, for example, that

none of the parties in state court had ever questioned the private

ownership of surface waters nor the transferability of water and

water rights and that the respondents received no semblance of a

fair opportunity to litigate and defend their property rights.

In addition to the McBryde record, the District Court re-

ceived evidence by way of testimony and voluminous

documentation, that had been in part tendered in the rejected

petitions for rehearing, and which the McBryde court never

considered. As summarized in the findings by the District

Court, that evidence showed: the long history of investments by

respondents in elaborate diversion and irrigation systems; the

history of Hawaiian case law since 1867 recognizing and solid-

ifying private ownership and transfers of water rights: and

consistent governmental recognition of private ownership and

transportability of water through taxation, condemnations,

governmental studies and reports, encouragement of irrigation,

8

and numerous transactions in which the State or the Territory

acquired or disposed of water rights in the same way that it dealt

with other property rights. App. 75a-95a.

After months of posttrial cogitation and labor, the District

Court issued its opinion on October 26, 1977, concluding that

respondents had significant vested property rights that were

directly jeopardized by McBryde. App. 98a-102a. The court

also concluded that in McBryde, respondents were *‘deprived

of property rights without ever having had a fair and meaningful

opportunity to defend against their being handed over to the

State on a silver platter."’? App. 96a. Accordingly, the District

Court entered judgment (App. 263a-267a) granting declaratory

and injunctive relief against enforcement of the portions of

McBryde that divested private ownership of the normal surplus

water and interfered with the transportability of water. The final

determination of awards of prescriptive water and storm and

freshet surplus water was left to the state courts for determina-

tion as not involving purely federal claims.

b. Court of Appeals proceedings.

Appellate proceedings before the Ninth Circuit Court of

Appeals commenced in 1978. In what may well be an unpre-

cedented phenomenon, Chief Justice William Richardson!” of

the Hawaii Supreme Court not only filed a brief as amicus

curtae but also participated through counsel in oral argument.

At oral argument counsel for amicus Richardson urged the

Court of Appeals to certify questions to the Hawaii Supreme

Court to ascertain the meaning and effect of McBryde under

’ Although petitioners now urge that the invocation by respondents of the

“rehearing process (Petition at | 1) and the granting of additional time to

file the petition for rehearing afforded due process to respondents (Petition

at 24-25). at trial petitioners made no attempt to show that respondents

ever had a meaningtul opportunity to litigate their federally protected

rights in state court or that respondents” claims were passed upon or

permitted to be heard.

'’Chiet Justice Richardson was one of the three-member majority responsi-

ble for the McBryde decision.

9

state law. On April 28, 1981, the Court of Appeals did certify

six questions (App. 414a-415a) to the Hawaii Supreme Court,

and proceedings in the Court of Appeals were held in abeyance

pending the responses. App. 41 3a.

Given Chief Justice Richardson's participation as amicus

curiae on behalf of petitioners, respondents twice moved for his

recusal from consideration of the certified questions. Those

motions were denied, as was a motion to have an official court

reporter at the oral argument on the certified questions. On

December 29, 1982, one day before Chief Justice Richardson's

retirement from the court, the Hawaii Supreme Court issued its

opinion, authored by Chief Justice Richardson, in response to

the certified questions. App. 14a-55a; Robinson v. Ariyoshi, 64

Haw. 641, 658 P.2d 287 (1982).

In its response to the certified questions, although the federal

court record had been transmitted to the Hawaii Supreme Court,

that court ignored the factual findings made by the federal court,

none of which was challenged by petitioners on appeal. While

conceding on the one hand that McBryde does not have res

judicata effect against any particular diversions of water, App.

24a-25a, the court on the other hand adhered to its position that

the McBryde rulings on water ownership and water diversion

would have binding precedential effect in all courts in Hawaii.

App. 28a.

The federal court record was supplemented with the briefs

and other writings filed in the Hawaii Supreme Court concern-

ing the certified questions, and the Court of Appeals allowed

additional briefing and further oral argument. The Court of

Appeals issued its decision on February 20, 1985, affirming the

District Court **in all respects insofar as it declares the rights of

the parties,’’ App. 13a, but vacating the injunction as premature

‘*‘[bJecause the state officers in these proceedings have taken no

steps to interfere with plaintiffs property, and have denied that

they are presently planning to take such steps.*’ /d. The Court

of Appeals also made it clear that *‘[t}he state must bring

condemnation proceedings before it can interfere with vested

water rights and the enjoyment of the improvements made in

reliance thereon.”” /d.

10

REASONS FOR DENYING THE WRIT

1. The Issues Raised by the Petition Are So Unusual

that They Are Unlikely to Recur.

The issue as stated by the Court of Appeals in this case 1s:

‘Can the state. by a judicial decision which creates a nfajor

change in property law, divest property interests?’’ App. Sa.

The virtually obvious answer is “*No.**'! Petitioners do not

quarrel with that answer to that question. Thus, they do not

quarrel with the result in this case insofar as it vindicates

federally protected property rights. Rather, petitioners seek to

challenge the method by which that result was achieved.

In this case respondents’ vested water rights were divested

and impinged upon by a sua sponte decision of the Hawaii

Supreme Court reshaping a case before it in a manner never

contemplated or suggested by any of the litigants. Despite the

extensive efforts of the parties (other than the State) to call to the

State court’s attention that its decision was beyond both the

claims of any party and the scope of the evidence and would, in

fact, be contrary to the evidence if an evidentiary presentation

were allowed, the state court refused to permit any hearing or

evidentiary showing and refused to address or consider or

permit the parties to litigate fairly any constitutional issues.

Against this backdrop, respondents applied to the federal court

for relief under 42 U.S.C. § 1983.'? The federal court has

granted relief declaring the vested rights of respondents and

'' Brinkerhoff-Farris Co. v. Hill, 281 U.S. 673. 680 (1930): Hughes v.

Washington, 389 U.S. 290, 297 (1967) (Stewart, J.. concurring).

‘Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights.

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.”

protecting those rights from taking without due process and Just

compensation.

Unless one assumes that state courts are prone to making

radical decisions of property law without either first or sub-

sequently permitting the property claimants to substantiate and

defend their claims in a due process hearing, it is unlikely that

the federal courts will be burdened with cases like this. Assum-

ing that state courts in the process of making changes in prop-

erty law or otherwise affecting property rights afford due

process in considering and addressing constitutional claims

presented to them, then aggrieved parties will have their direct

rights of review to this Court, and relief in the other federal

courts will generally not be available.

Respondents are not aware of any case akin to the present

case, and petitioners have suggested none. Similarly, re-

spondents are aware of, and petitioners suggest, no conflict

among the circuits on any of the federal claims addressed tn this

case. Because the courts below confined themselves to the

exercise of federal question jurisdiction and did not exercise

diversity jurisdiction or pendent jurisdiction over state claims

their decisions do not conflict with the Hawaii Supreme Court in

a manner sufficient to invite review by this Court. As here-

inafter discussed, the decisions below also do not conflict with

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983).

2. Review of this Case Would Result in an

Affirmance.

Admittedly, the probability of an affirmance does not compel

denial of a petition for certiorari. However, given scarce re-

sources of time and given the thoroughness and congruence of

the decisions by both the District Court and the Court of Ap-

peals, there appears to be little reason to review this case only to

affirm it. Of necessity the record in this case is voluminous and

its history, both before and during the litigation, is extensive.

After laboring at length with the record, the District Court

issued a comprehensive decision and judgment. App. 56a-

12

110a, 263a-270a. After a sojourn in the Court of Appeals in

excess of six years, the case has the benefit of that court’s

careful consideration and decision. App. la- 13a. So far as the

issues raised by petitioners are concerned, the decision and

analysis by the Court of Appeals do not differ materially from

the decision and analysis of the District Court. The Disfrict

Court has now entered its amended judgment as directed by the

Court of Appeals.

Respondents are sensitive to the fact that the relationship

between state court jurisdiction and federal court jurisdiction

can be a difficult one in many situations. But not here. Despite

the long, tortured history of this case, one fact shines through:

the court of last resort in Hawaii announced for the first time a

decision that (1) was based on points not anticipated and never

argued by the parties, (2) was contrary to all preexisting law in

the state,'* and (3) cast a conclusive, adverse cloud on re-

spondents’ title to property without respondents ever having

had a hearing or an adjudication to support the court’s ruling. A

federal court under these circumstances surely has jurisdiction

to rule on respondents’ due process rights. Once jurisdiction has

been established, there is no need for this Court to pass further

to the highly unusual facts that relate to this case alone and are

unlikely to be repeated.

We think that state courts will rarely, if ever, follow in the

footsteps of the McBryde court, but a reversal by this Court

would condone the substantive and procedural irregularities of

McBryde and suggest the opportunity to other courts to act

likewise.

'*See Appendix B annexed hereto for a partial list of the preexisting state

cases summarily overruled by McBryde.

13

3. The Arguments Stated in the Petition Are Wrong

on Their Merits.

Respondents will address the following arguments presented

by petitioners:

a) District of Columbia Court of Appeals v. Feldman'*

dictates reversal.

b) The state regulatory process triggered by McBryde has

not run its course sufficiently to justify federal relief.

c) The operation of the “‘rehearings process ’’ in McBryde

precludes this case.

a. Feldman does rot apply to the facts of this case.

The Feldman case involved bar applicants who unsuccess-

fully applied to the District of Columbia Court of Appeals for

waiver of an accreditation requirement for admission to the

District of Columbia bar. The applicants did not petition this

Court for certiorari to review the denials of their applications.

460 U.S. at 482. Instead, they filed suits in the federal District

Court generally challenging the constitutionality of the bar

admission rule and also challenging the denial of their particular

applications. /d. at 469 n.3. The federal court dismissed the

suits as efforts to secure unauthorized review of the District of

Columbia court’s decisions. /d. at 470. The Circuit Court of

Appeals reversed. This Court vacated and remanded, holding

that the District Court was correct insofar as it refused to

entertain the bar applicants’ challenges to the denial of their

particular applications but that the District Court did have

jurisdiction to consider the general constitutional challenge to

the bar admission rule.

Unlike the present case, Feldman involved constitutional

claims that could have been raised and considered in the first

'4460 U.S. 462 (1983).

14

instance by the District of Columbia Court of Appeals (equiva-

lent to the Hawaii Supreme Court).'* The federal District Court

noted that the District of Columbia court ***could and would

have entertained and determined’ *’ the constitutional issues and

was still willing to do so. /d. at 473 n.9. There was no indication

that the District of Columbia court had refused to congider

constitutional issues or had otherwise denied procedural due

process to the bar applicants in the way it addressed their

claims.

In an effort to bring the case within the purview of Fe/dman,

petitioners make the invalid contention that the findings of the

courts below that the Hawaii Supreme Court did nor pass on

respondents constitutional claims are mere presumptions!® by

those courts. Petition at 20. Petitioners use the term **presump-

tion of non-decision”’ in this context at least four times in their

Petition (at 21 & 25) and refer at least four other times to what

the courts below “‘presumed*’ about the proceedings in the

Hawaii Supreme Court. Petition at 18, 20 & 27. But the opin-

ions below reveal that the federal courts neither articulated nor

intimated any such presumption. Rather, the District Court

found that the Hawaii Supreme Court *‘refused”* to consider or

'SUnlike Feldman, this case also involves a substantial evidentiary record

beyond the scope of the record before the McBryde court. The McBryde

court refused to admit or consider much of the evidence essential to

respondents’ federal claims.

'® After recasting the federal court findings as a **presumption, ** petitioners

seek to counter that presumption with their own presumption, contending

that “the state court must be deemed to have ‘rule|d}, either explicitly or

implicitly, on the merits of the constitutional question.’ ** Petition at 22. In

addition to quoting Ake v. Oklahoma, 105 S. Ct. 1087, 1093 (1985), out of

context, this position is directly contrary to the stance taken by the Hawaii

Attorney General in 1974 in the Motion to Dismiss Appeal: *‘The per

curiam affirmation of the Supreme Court does not mention, discuss or pass

upon any Federal questions.** Appendix A hereto at A-10. Also, *‘the

highest State Court has failed to pass upon a federal question.”* /d. at

A-11.

15

permit argument on the constitutional claims, App. 63a, 79a,

96a & 104a n.35. “paid no attention to plaintiffs’ challenge to

the constitutionality of its decision,”’ App. 75a. **precluded

argument or hearing,”’ App. 78a, and “‘refused to have an

official reporter present.”” App. 79a. Likewise, the Court of

Appeals recognized that the state court “‘refused”* to hear or

consider constitutional issues, App. 8a & 9a, and “summarily

rejected”* attempts to address constitutional claims on rehear-

ing. App. 5a.

Before this Court can adopt petitioners’ notion of *‘presump-

tion of non=decision,”” it will first need to disregard the Attor-

ney General's prior judicial representations made to this Court,

and also need to go behind the decisions below to make its own

examination of the record. Such an examination will substan-

tiate the invalidity of petitioners’ argument. But we submit that

this Court, in the exercise of its discretionary review, should not

be called upon to make any such factual review in this singular

situation that is unlikely ever to reoccur.

b. This case has nothing to do with state regulatory

processes.

Petitioners’ argument that this case is a premature interter-

ence in the state regulatory process!’ is nearly incomprehensi-

ble. The conduct of the Hawaii Supreme Court in McBryde was

judicial, not administrative or regulatory. Any implication that

the Hawaii Supreme Court was somehow acting as an adminis-

trative agency in McBryde is a novel thought and, at best,

presents an issue not raised below.

‘Contrary to petitioners” assertion that the Court of Appeals “explicitly

recognized that the regulatory machinery had not even been set in mo-

tion,”’ Petition at 23, the opinion reveals that the court mentioned *‘ad-

ministrative proceedings’ only once, as an alternative to judicial action to

take property. App. 6a. Lest there be any doubt, respondents have never

contended, and do not now contend, that the decisions below exempt

respondents from any proper exercise of the police power.

16

As recognized by the Court of Appeals, App. 6a, McBryde's

retroactive reversal of settled state property law clouded prop-

erty titles and did not merely regulate usage of the property. As

such, its impact was not hypothetical or tentative. On the record

in this case, there is nothing abstract about petitioners’ inien-

tions to apply McBryde .'8 In their Proposed Findings of Fact

and Conclusions of Law, at 5, filed with the District Court on

July 9, 1976, petitioners revealed what they planned to do with

the newly declared state ownership and control of surface water

if the District Court denied relief to respondents:

The sovereign state as the owner of all surplus water

subject to the rights of owners of land having ancient appur-

tenant water rights and riparian water rights, would be in a

position to utilize all surplus water for the most beneficial

interest of the public. Hanapepe River will, except during

extremely dry conditions, once again flow from the upper-

most watershed in the Alakahi Swamp in Mt. Waialeale to

the mouth of the stream into the ocean.

In short, petitioners would take respondents” water rights and

allow “‘the natural flow of the stream without substantial di-

minution and in the shape and size given it by nature’’, as

dictated by McBryde. App. 185a. Later before the Court of

Appeals, petitioners reiterated their view that McBryde empo-

wered them to stop respondents’ water diversions. State Offi-

cers’ Memorandum on the Documents Which Constitute the

Judgment for Res Judicata Purposes Under the Law of Hawaii,

at 4-5, filed Sept. 21, 1979. Even more recenily, in their

opening brief addressing the certified questions, petitioners

stated unequivocally that the Hawaii Department of Land and

Natural Resources ‘would enferce the ruling under McBryde.”

Opening Brief at 3, filed July 30, 1981.

'SUnderstandably, petitioners are not taking action to enforce McBryde

because they were enjoined trom doing so by the District Court's judg-

ment entered on March 2, 1978. App. 263a, 266a.

17

c. The “‘rehearings process’’ was no substitute for due

process in this case.

There is no reason to construe the decisions below as a

wholesale invaiidation of the state “‘rehearings process.**'?

Respondents do not urge pervasive rejection of rehearings pro-

cesses any more than the District Court intended to do so by

characterizing the limited rehearing in McBryde as *“‘almost

farcical.’’ App. 96a. So far as respondents’ research discloses,

McBryde is an isolated instance of a radical sua sponte disrup-

tion in property law followed by refusal to entertain a rehearing

on the constitutional issues raised by the decision itself.

**A State may not grant preclusive effect to a constitutionally

infirm judgment, and other state and federal courts are. not

required to accord full faith and credit to such a judgment.”

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482 (1982)

(footnote omitted). Procedural due process requirements are a

matter of federal law*” and may not be diminished simply

because the state court retroactively specifies procedures that it

deems adequate for evaluating respondents’ claims. Logan v.

Zimmerman Brush Co., 455 U.S. 422, 432 (1982); Vitek v.

Jones, 445 U.S. 480, 491 (1980): Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1,9 (1978). As this Court explained in

Zimmerman Brush, 455 U.S. at 432, “‘any other conclusion

'°The term “‘rehearings process” was coined by the Hawaii Supreme Court

in its response to the certified questions. App. 34a. The opportunity to file

a petition for rehearing is provided by rule of court, but, because not

ordered to do so, the State filed no response to the orivate parties” federal

claims, which claims were summarily denied by the court.

°°The preclusive effect of Territory v. Gay, 52 F.2d 356 (9th Cir. 1931),

affirming 31 Haw. 376(1930), cert. denied, 284. U.S. 677 (1931). isalsoa

matter of federal law. Southwest Airlines Co. v. Texas Internat | Airlines,

546 F.2d 84, 94 (Sth Cir.), cert. denied, 434 U.S. 832 (1977): Aerojet-

General Corp. v. Askew, 511 F.2d 710, 715 (Sth Cir), appeal dismissed,

cert. denied, 423 U.S. 908 (1975). All arguments of petitioners concern-

ing the preclusive effect of McBryde fold in upon themselves by reintore-

ing the preclusive effect of Territory v. Gay.

18

would allow the State to destroy at will virtually any state-

created property interest.’

One simple reason why the “‘rehearings process” 1n

McBryde did not equate with due process is that the *‘constitu-

tional issues presented by the state court petitions for rehear-

ing’ did not *‘involve pure questions of law’’ (Petition at 26) as

contended by petitioners. Rather, the sua sponte departure of

the state court from the record and issues before it necessitated

an evidentiary hearing as part of the “‘rehearings process.”

Respondents earnestly requested the opportunity to present

evidence but were rebuffed by the state court at every turn.

Much of the evidence proffered to and refused by the state couri

is precisely what was admitted into evidence and considered by

the District Court.

CONCLUSION

Given the total failure and refusal of the Hawaii Supreme

Court to address or consider the constitutional issues engen-

dered by McBryde, there can be no serious question about the

exercise of jurisdiction and the grant of relief by the courts

below. This case does not merit review, and the petition for a

writ of certiorari should be denied.

Respectfully submitted,

J. RUSSELL CADES, Counsel of Record

PHILIP J. LEAS

CADES SCHUTTE FLEMING & WRIGHT

Attorneys for Respondent

McBryde Sugar Company, Limited

ROBERT B. BUNN, Counsel of Record

RICHARD R. CLIFTON

CADES SCHUTTE FLEMING & WRIGHT

Atterneys for Respondent Small Owners

LEE ee

APPENDIX A

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

Nos. 73-1440, 73-1441, 73-1442

McBrybdeE SuGar Company, LIMItveD, and

OLOKELE SuGar Company, Liwiren, A ppellunts,

VS.

STATE OF Hawa, et al.. Appellees.

SELWYN A. Ropinson, et al.. Petitioners,

VS.

STATE OF HAWwatr, et al., Respondents.

Ipa ALBARADO, et al., Petitioners,

VS.

STATE OF Hawaty, et al., Respondents.

On Appeal from the Supreme Court of the State of Hawaii and

Petitions for Writ of Certiorari to the Supreme Court

of the State of Hawaii

MOTION TO DISMISS APPEAL FROM THE

SUPREME COURT OF HAWAII

TEORGE PAt,

JOHNSON H. Wona.,

4

Attorneys for A ppelliec-Respondent

State of Hamar,

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO, CA 94105

A-2

Subiect Index

Page

Gtalometit ...ccavcccc cc en ene ete rer + ebee steele

Questions presented 22... 66. c eee eee eee eee een ene

IIE os Soi agin oe ka eee nt Oo esee se aer nee eee 9

f

I.

Questions which appellants and petitioners seek to have

reviewed were neither properly raised nor presented

below nor decided upon by the Supreme Court of Hawaii 9

IT.

The decision of the Supreme Court of Hawaii is clearly

eorrect and no substantial federal question is presented

in this appeal as to require plenary consideration ..... 11

Castes. weet cde eu te en ae ee ake ode es eee 13

Table of Authorities Cited

- Cases Pages

Bailey v. Anderson, 826 U.S. 203 (1949)... 6. eee ee eee eee 9

Carter v, Territory, 24 Haw. 47 (1917) «0... - eee eee eee eee 11

(Charleston Fed. S. & Assn. v. Alderson, 324 U.S. 182 (1945) 10

Chicago I. & L. R. Co. v. MeGuire, 196 U.S. 128 (1905) .... 9

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ......-. 12,15

Haw. Com. & Sugar Co. v. Wailuku Sug. Co., 15 Haw. 675

CROR k ba dav we ceun tue ses aw Reese aren eee 11

Patterson v. McCormick, 99 S.E. 401 (1919) .............. 12

Peck v. Bailey, 8 Haw. 658 (1867) 2.6... ee eee ee eee eee 11

Territory v. Gay, 31 Haw. 376 (1930) 2.0... eee ee eee eee 14, 32

Statutes

Hawaii Revised Statutes:

Part IIf, Chap. 664 .......6. cece cee cw cee nmeeseass 2

Te ey &: Si eee eer mame me aoe cata ar art mere nt 10, 11, 12, 13

A-3

IN THE

Sunreme Cost of the United States

OcToBER TERM, 1973

Nos. 73-1440, 73-1441, 73-1442

McBrybrE SuGarR CoMPANyY, LIMITED, and

OLOKELE SUGAR COMPANY, LIMITED, Appellants,

VS.

State oF Hawatt, et al., Appellees.

SeLwyn A. Ropinson, et al., Petitioners,

VS.

Srare oF Hawall, et al., Respondents.

IpA ALBARADO, et al., Petitioners,

VS.

SravTrE oF Hawat, et al., Respondents.

On Appeal from the Supreme Court of the State of Hawaii and

Petitions for Writ of Certiorari to the Supreme Court

of the State of Hawaii

MOTION TO DISMISS APPEAL FROM THE

SUPREME COURT OF HAWAII

Appellee-Respondent, State of Hawaii, moves this

Honorable Court to dismiss the appeal herein on the

following grounds:

A-4

(1) The Federal questions sought to be reviewed

were neither timely nor properly raised nor

expressly passed on by the Courts of Ha-

wail,

(2) The appeal does not present a substafitial

Federal question.

STATEMENT

In 1959, the present suit was instituted by McBryde

Sugar Company, Limited (**McBryde”) pursuant to

Part II, Chapter 664, Hawaii Revised Statutes, to

adjudicate the ownership of all waters of the Hana-

pepe Valley basin.

At the hearing before the trial Court, appellants

and petitioners did not raise any Federal Constitu-

tional questions, and the trial Court, on December 10,

1968, made a determination of the water rights of the

landowners.’ Although the trial court noted that di-

versions of water had occurred, the Court did not

reach the legality of such diversions.’

Separate appeals to the Supreme Court of Hawaii

were filed by McBryde, Gay & Robinson and the State

of Hawah, but no Federal Constitutional questions

were presented. The issues involved were questions

MAIL reference to appendix made herein refers to * Joint Appen-

dix to Jurisdictional Statement and Petitions for Writs of Cer-

tiorari” submitted on behalf of Appellants and Petitioners. De-

cision (App. +); Conelusions of Law No. 13 (App. 55-57).

“Decision, Findings 11 and lo (App. 7, 8-9); Finding 380 (App.

13).

A-5

concerning the rights of landowners to appurtenant,

riparian and surplus waters.

The brief of appellant McBryde Sugar Company,

Limited, in the Supreme Court stated the questions

as follows:

.

“QUESTIONS PRESENTED

Under Hawaiian law, what is the standard

for determining lands entitled to ancient ap-

purtenant water rights?

Can lands used for taro cultivation from time

immemorial be denied an ancient appurtenant

water right because they were not actually

under taro cultivation on the date of the Land

Commission Award, where there has been no

proof of abandonment of the immemorial

right and no proof of prescriptive use of

those waters by others ?

What lands, in addition to those found by the

trial court to have ancient appurtenant water

rights, are entitled to such a water right and,

conversely, what lands held by the trial court

to be entitled to ancient appurtenant rights

are not so entitled ?

What is the proper measure of the water

duty of lands having ancient appurtenant

rights in this case ?

Is it proper to reduce the water duty of each

acre of taro land found by the trial court to

have an ancient appurtenant water right

based upon usage of such lands for the culti-

vation of taro at the time of the Land Com-

mission Awards by one-third te allow for

either: (a) the fact that other lands, watered

6.

~]

A-6

by Hawaiian custom from time immemorial,

were not actually in cultivation (that is, were

fallow) at the time of the Land Commission

Awards; or (b) for the fact that, in the opin-

ion of the trial court, at least one-third of the

very lands of the trial court nad held were

entitled to an ancient appurtenant water

right were at all times lying fallow at the

time of the Land Commission Awards (prob-

ably because of the decline in population at

that time) ?

Are prescriptive water rights to the flow of a

stream to be measured only as of the driest

five days in the whole fourteen-year three-

month prescriptive period, or are such rights

to be measured in normal dry weather flow

conditions, ard also at other flow conditions

of the stream, based upon the actual proof

of prescriptive usage at various river flow

states over the entire prescriptive period /

What additional prescriptive water rights of

McBryde should be awarded at each flow

stage of the Hanapepe River?

Were certain of the water flow, diversion, and

measurement figures adopted by the trial

court erroneous ?

Did the trial court err in refusing to follow

the rule of Carter v. Territory, 24 Haw. 47

(1917) regarding the rights of owners of

ahupuaas or ilis kupono along a stream to

share in the storm and freshet waters of the

stream pursuant to the doctrine of riparian

rights and in refusing to award McBryde its

riparian rights in the storm and freshet wa-

ters of Hanapepe stream ?

A-7

10. Under the record in this case, what is the

11.

dividing line between the normal daily sur-

plus flow of the stream (owned by G&R) and

the storm and freshet surplus flow of the

stream (to be shared by G&R, the State and

McBryde) ?

If this court decides to overrule Carter v.

Territory, what rule of law should be estab-

99

lished for surplus waters ?

The brief of Gay & Robinson stated the questions

on appeal as follows:

“QUESTIONS PRESENTED

Did McBryde, by taking water belonging to

-the State and other land owners, for a 10-year

period acquire a prescriptive right to take the

water which G&R was entitled to and in fact

continued to take during the 10-year period ?

Did the circuit judge err in enjoining G&R

from diverting an unascertained quantity of

water contrary to HRCP 65(d) ?

Did the cireuit judge err by making a double

allowance for ditch losses allowing each owner

of appurtenant water rights to take 50,050

epapd (gallons per acre per day) measured at

any point along or at the end of the ditches

as well as at the point the ditches divert water

from the river, when the court had already in-

creased the rights of these owners 15% _ to

allow for the losses in ditches in arriving at

the figure of 50,050 gpapd 2”

The brief of the State of Hawaii stated the ques-

tions on-appeal as follows:

The

A-8

‘* STATEMENT OF THE QUESTIONS INVOLVED

What is the quantum of proof necessary to

show that certain lands were in taro cultiva-

tion since time immemorial and as such are

entitled to appurtenant water rights?

What is the quantity of water necessary to

raise taro as it was done in ancient time as

measured in gallons per acre per day ?

Where land is claimed to be ancient taro land

which is entitled to appurtenant water right,

what is the critical period that such land must

have been in taro culture in order that the

water right may become vested ?

Where land owned by the king in ancient time

was in taro culture, is it necessary that such

land be in taro culture at the time that ad-

joining taro lands were granted under Land

Commission Awards, in order that such sov-

ereign land be vested with appurtenant water

rights ?

Is there a distinction between normal surplus

water and storm and freshet water? Assum-

ine that there is a distinction, is the law the

same on the ownership thereof ?”

opinion of the Supreme Court of Hawaii

entered on January 10, 1973, with one Justice dissent-

ing, does not mention, discuss or pass upon any Fed-

eral question,

Petitions for rehearing were filed by McBryde and

by Gay & Robinson. A ‘‘ Motion for Partial Vacation

of Opinion and for Opportunity to Present Evidence

and Argument” was also filed by Olokele Sugar Com-

pany, Limited.

A-9

On June 18, 1973, the Supreme Court of Hawaii

entered an order directing McBryde, Gay & Robinson,

the State of Hawaii and the Small Owners to file

briefs limited to the issues as follows :*

“1, The pertinent portion of HRS §7-1, which

was first enacted on August 6, 1850, Laws

1850, and which has been in our statute

books ever since, reads:

‘The people shall also have a right to

drinking water, and running water, and the

right of way. The springs of water, running

water, and roads shall be free to alli, on all

iands granted in fee simple; provided, that

this shall net be applicable to wells and

water-courses, which individuals have made

for their own use.’

Is the foregoing statute material to the determi-

nation of the water rights of the parties in this

ease? If so, why, if not, why?

2. The parties in this action introduced evidence

as the record shows, to show that parcels of

land in the Hanapepe Valley were entitled to

appurtenant water rights for raising taro at

the time of the Mahele or the Land Commis-

sion Award. The trial court found certain par-

cels were entitled to appurtenant water rights.

Under what principle or theory of law are the

owners entitled to apply the appurtenant

water rights to parcels of land other than that

to which the court found the right was appur-

tenant ?”

On June 29, 1973, Olokele was also ordered by the

Court to file a brief directed to the same issues.

3Order of June 18, 1973 (App. 108-109).

EE ————— a

A-10

Oral argument was duly held limited to the issues

specified in the order of June 18, 1973. On December

20, 1973, a per curiam affirmation of its prior opinion

entered on January 10, 1973, was entered by a major-

ity of the Supreme Court finding ‘*no reason to change

the decision filed herein.”* The per curiam affirmation

of the Supreme Court does not mention, discuss or

pass upon any Federal questions.

QUESTIONS PRESENTED

1) Where federal constitutional questions are nel-

ther timely nor properly raised in proceedings to de-

termine the rights of landowners to appurtenant, ri-

parian, and surplus waters, and the Supreme Court of

Hawaii does not pass on any federal question, docs

the jurisdiction of the United States Supreme Court

attach on appeal from the state judgment ?

2) Where the Supreme Court of Hawai makes

a determination of the rights of landowners to appur-

tenant, riparian and all surplus waters by construing

for the first time a state statute and its decision is

made upon a fair and substantial basis, does the jur-

isdiction of the Supreme Court ef the United States

attach on appeal from the state judgment?

3) Where a state statute involves the ‘rights of

he people” to appurtenant, riparian and surplus wa-

ters, and the sole issue before the state courts Is a

determination of such water rights, is there a substan-

tial federal constitutional question involved ?

I55 Haw. at 260 (App. 114).

ARGUMENTS

I.

QUESTIONS WHICH APPELLANTS AND PETITIONERS SEEK

TO HAVE REVIEWED WERE NEITHER PROPERLY RAISED

NOR PRESENTED BELOW NOR DECIDED UPON BY THE

SUPREME COURT OF HAWAII

In order for this Court to vindicate its jurisdiction

to deal with the federat questions in this case, if any,

this Court must inquire whether those questions were

presented to the Supreme Court of Hawaii in such a

manner that it was necessarily decided by the State

Supreme Court when it affirmed its prior decision of

January 10, 1973. If the questions were not so pre-

sented, then this Court has no power to consider it.

See, Bailey v. Anderson, 326 U.S. 203, 206-207 (1945).

Moreover, this Court has stated that when, as here,

the highest State Court has failed to pass upon a

federal question, it will be assumed that the omission

was due to want of proper presentation in the State

Courts, unless the aggrieved party can affirmatively

show the contrary. See, Bailey v. Anderson, supra;

Chicago Tl. & L. R. Co. v. MeGuire, 196 U.S. 128, 131-

133 (1905).

In the separate appeals to the Supreme Court of

Hawaii taken by MeBryde, Gay & Robinson and the

State of Hawail, no Federal constitutional questions

were raised. The issues involved were solely questions

concerning the rights of landowners to appurtenant,

riparian, and surplus waters.

Subsequent to the decision of the State Supreme

Court on January 10, 1973, both appellants and peti-

A-12

tioners filed petitions for rehearing. However, in their

petitions and briefs, although appellants and petition-

ers challenged the application of Hawaii Revised Stat-

utes §7-1 to the determination of the water rights, at

no time did they draw in question the validit¥ and

constitutionality of the statute itself. The opinion

of the Supreme Court of Hawaii construes the ap-

plieability of Hawaii Revised Statutes ‘7-1 to the de-

termination of the water rights of landowners; the

opinion does not indicate that the State statute was

drawn in question as being repugnant to the Constitu-

tion, nor does it appear from the opinion that a fed-

eral question was presented to or considered by the

Court. Thus, even if this Court should find that fed-

eral questions were properly raised below, this appeal

should be dismissed for failure of appellants and

petitioners to explicitly attack the validity and consti-

tutionality of the State statute and not merely its ap-

plicability. See Charleston Fed. S. &. Assn, ve Alder-

son, 324 U.S, 182, 187 (1945).

Assuming arguendo, that federal questions were

properly raised below, appellants and petitioners were

not deprived of their constitutional right to a hearing

pursuant to the Due Process Clause of the 14th

Amendment.

Pursuant to the order of the Supreme Court of

Hawaii entered on June 18, 1973, all parties to the

action were directed to file briefs concerning (1)

whether Hawaii Revised Statutes §7-1 is material to

the determination of the water rights of the parties,

and (2) under what principle or theory of law are

A-13

the landowners entitled to transport water. Appel-

lants and petitioners were provided the opportunity

to argue the validity and constitutionality of the State

statute both in their briefs and upon oral argument.

However, both appellants and petitioners chose to

argue the applicability of Hawaii Revised Statutes

§7-1 rather than its validity and constitutionality.

Es,

THE DECISION OF THE SUPREME COURT OF HAWAII IS

CLEARLY CORRECT AND NO SUBSTANTIAL FEDERAL

QUESTION IS PRESENTED IN THIS APPEAL AS TO RE-

QUIRE PLENARY CONSIDERATION

The Supreme Court of Hawaii, prior to rendering

its opinion of January 10, 1973, reflected back to the

time of the Great Mahele of 1848 and reviewed its

past decisions rendered in Pech v. Bailey, 8 Haw.

658 (1867); Taw. Com. & Sugar Co, v. Wailuicvu

Sug. Co., 15 Waw. 675 (1904); Carter v. Territory,

24 Haw. 47 (1917); and Territory v. Gay, 31 Haw.

376 (1930). The Court also reviewed the Principles

of the Land Commission, Stat. L. Kamehameha ITI

81 (1847), prior to making a determination of the

rights of the people to appurtenant, riparian, and

surplus waters. The appurtenant water rights deter-

mined by the Court are synonymous with the ancient

water rights which attached to halo (taro) land mea-

sured by the quantum of water necessary to cultivate

taro under the ancient system of taro cultivation.

In rendering its opinion, the State Supreme Court

acknowledged the importance of their decision stating:

“This court, like the United States Supreme

Court has ‘rejected a doctrine of disability at self-

correction.’ Helvering v. Hallock, [809 U.S. 106,

121 (1940)]. We believe that the doctrine of

stare decisis is subordinate to legal reasons and

justice and we should not be unduly hesitant to

overrule a former decision when to do so would

bring about what is considered manifest justice

995

The Supreme Court of Hawaii for the first time

construed Hawail Revised Statutes §7-1 in determin-

ing the rights of the parties to appurtenant, riparian,

and all surplus waters and clearly defined water right

laws which were in the shaded area as the result of

Territory ve. Gay, 31 Haw. 376 (1930), where the

three Justices differed on the law.

In Patterson ve. MceCormich, 99 SE. 401, 405 (1919),

the Supreme Court of North Carolina was faced

with construction of a will which could have been de-

cided adversely to the plaintiffs were it not for a

statute which changed the es6mmon law. The Court

there stated:

“Where the statute is explieit and has been

overlooked, the doctrine of stare decisis does not

apply ... when the statute and the precedents

conflict the statute controls. The Courts cannot by

a line of erroneous decisions overrule the ‘stat-

ute.”

A state has the power to determine its own peculiar

rules of property rights in waters within its bounda-

ries by statutes and Court decisions. In Live Railroad

*Decision of January 10, 1975 (App. 72).

Co. v. Tomphins, 304 U.S. 64, 78 (1938), the Court

stated:

‘*Except in matters governed by the federal

constitution or by Acts of Congress, the law to

be applied in any case is the law of the State.

And whether the law of the State shall be de-

clared by the Legislature in a statute or by its

highest court in a decision is not a matter of fed-

eral concern.”

Since a determination of property rights is a mat-

ter of local concern, the decision of the Supreme

Court of Hawaii in construing Hawaii Revised Stat-

utes §7-1 should not be overturned. The decision of

the Court is rendered upon a fair and substantial

basis and no federal questions are presented as to re-

quire plenary consideration by this Honorable Court.

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that this appeal be dismissed.

Dated, Honolulu, Hawai,

May 23, 1974.

Respectfully submitted,

GEORGE Pt,

Attorney General, State of Hawaii,

By Jounson H. Wonc,

Deputy Attorney General,

Attorneys for A ppellee-Respondent

State of Hawaii.

B-1

APPENDIX B

Partial List of Hawaii Cases Overruled by McBryde

The Hawaii Supreme Court’s holding regarding the State’s

ownership of normal surplus water overruled the holdings of

Territory v. Gay, 31 Haw. 376, 387-88 (1930), aff'd, 52 F.2d

356 (9th Cir.), cert. denied, 284 U.S. 677 (1931) (** “While the

king owned this ahupuaa, he had a right to apply the water to

what land he pleased, but after the water courses were made

. . . his conveyance of the land would include them. . . .” That

ruling. . . is as applicable to the surplus waters of an tli kupono

as it is to those of an ahupuaa.*’), and Hawaiian Commercial &

Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904)

(*‘Surplus water. . . is the property of the konohiki to do with

as he pleases... .”’). The holding conflicted with statements

made in Carter v. Territory, 24 Haw. 47, 70 (1917) (**Where a

stream flows through a single ahupuaa ... the [normal]

surplus waters of the stream belong to the ahupuaa.”’), and

Foster v. Waiahole Water Co., 25 Haw. 726, 734 (1921)

(Surplus water is the “‘class of water which originally the chief

or konohiki could dispose of at will irrespective of the rights of

the other owners and tenants ... .), and the reasoning of

authorities recognizing the prescriptibility of konohiki rights,

e.g., Kaneohe Ranch Co. v. Kaneohe Rice Mill Co., 20 Haw.

658, 666 (1911); Hawatian Commercial & Sugar Co. v.

Wailuku Sugar Co., 14 Haw. 40, 61-62 (1902), 15 Haw. 675,

690 (1904), 16 Haw. 113 (1904). See also Carter v. Territory,

_24 Haw. 47,58 (1917) (‘The appurtenant rights of ku/eanas in

government ahupuaas to water for irrigation are similar to those

in privately owned ahupuaas, except that in the latter case they

might be enlarged by adverse user.’’)

The Hawaii Supreme Court’s holding that normal surplus

water may not be transported beyond the watershed of origin

overruled Territory v. Gay, 31 Haw. 376(1930). aff'd, 52 F.2d

356 (9th Cir.), cert. denied, 284 U.S. 677 (1931) ("This ts a

Suit in equity instituted by the Territory of Hawaii for the

purpose of restraining a diversion by the respondents of certain

B-2

waters from the valley of Koula by means of dams, ditches and

pipelines to the arid lands of Makawell. . . .°° 31 Haw. at 377.

““*{NJo limitation . . . ever existed or was supposed to exist to

{the king’s] power to use the surplus waters as he saw fit... .

During recent years konohikis have in many instances diverted

from the ahupuaa the surplus water... .°”’ /d. at 385. **[A]Jn

injunction cannot be granted. **/d. at 392 (Perry, C.J.). ** [Gay

and Robinson] are legally entitled, by reason of their fee simple

ownership of the sources of the water supply arising in the ilis of

Manuahi and Koula to divert and use as their own, all the

normal daily surplus waters of the Koula stream... .°"’,/d. at

405 (Parsons, J.. quoting from the decision of the trial judge);

Foster v. Waiahole Water Co., 25 Haw. 726, 734(1921) ("The

water demised by the Kahana lease 1s properly termed ahupuaa,

konohiki or surplus water and was never appurtenant to any

particular part of the land. . . .°°); and Hawaiian Commercial

& Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904)

(**Surplus water. . . is not appurtenant to any particular portion

of the ahupuaa.*’). See also In re Taxes, Waiahole Water Co.,

2! Haw. 679 (1913) (Water rights transferred apart from a

parcel of land by the konohiki are separately taxable.).

As to the transferability of appurtenant water, the Hawaii

court overruled Palolo Land & Improvement Co. v. Wong

Quai, 15 Haw. 554, 562 (1903) ("We think that the plaintiff

may lawfully divert the water to which any unused [taro land]

. is entitled... 4°"): Wong Leong v. Irwin, 10 Haw. 265,

271 (1896) (**[Appurtenant water may] be utilized in any man-

ner, In any place, for any purpose ....°’); Horner v.

Kumultili, 10 Haw. 174, 180 (1895) (*‘The right to use the

Water. . . gives the owner. . . the right to use that water as he

chooses, and he may allow part of it or all of it to be used

elsewhere... .”’): Lonoaea v. Wailuku Sugar Co., 9 Haw.

651. 665 (1895) (-*We find no objection either in law or reason

to allowing the owner of land which 1s entitled to water from

transferring the same amount of water to other land. . . .*’);

and Peck v. Bailey, 8 Haw. 658, 666 (1867) (*"[ T]he defendant

B-3

had the right to use the water of his kalo [taro] land on other

aes 3

The Hawaii court’s holding that the right to use water may not

be prescripted because all water is owned by the State overruled

Kaneohe Ranch Co. v. Kaneohe Rice Mill Co., 20 Haw. 658,

666 (1911) (‘The diversion, if continued for the period re-

quired by the statute of limitations under circumstances of

hostility and otherwise so as to constitute an adverse use, would

ripen into a right.**); Lonoaea v. Wailuku Sugar Co., 9 Haw.

65!, 665 (1895) (*"[T]he plaintiffs . . . are entitled to such

amounts of water as they have acquired by prescription

“); and Davis v. Afong, 5 Haw. 216, 224 (1884) ("A

right by prescription can be acquired to the waters of a spring

which come to the surface and make a pond and flow . . . into

an auwai ....°'). The holding conflicted with statements

made in Wong Leong \. Irwin, 10 Haw. 265, 271 (1896)

(**[T]he wrongful user might by long continuance ripen into a

right. When once it has thus ripened into a mght it becomes a

superior and absolute right, no longer depending upon the

location of the land... .°’):; and Heeia Agricultural Co. v.

Henry, 8 Haw. 447, 448 (1892) (**We deem it to be well settled

law in this Kingdom that the right to use water for irrigation

purposes can be acquired by adverse and continuous use for

twenty years. ”’). ;