Opposition Brief — Ariyoshi v. Robinson

Fibit

NO

No. 85-406 ose?

— >

In The

Supreme Court of the United States

October Term, 1985

O

GEORGE R. ARITYOSHI, GOVERNOR,

STATE OF HAWAII, et al.,

Petitioners,

SELWYN A. ROBINSON, et al.,

Respondents.

fa)

Vv

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

— 0

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

—Q—-———- —_

Of Counsel:

Hoppick, Retnwatp, O’Connor

& Marrack

ALEXANDER C, MarrackK

2400 PRI Tower

Grosvenor Center

733 Bishop Street

Honolulu, Hawaii 968138

(808) 524-8350

Counsel of Record for Respondents

Selwyn A. Robison, et al.

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

> BEST AVAILABLE COPY

QUESTIONS PRESENTED

I

Have the federal courts jurisdiction to hear federal

constitutional claims where a state supreme court refuses

to hear argument or allow evidence on federal ¢laims which

claims are first raised in a petition for rehearing after the

court, overruling one hundred vears of law to the contrary,

sua sponte divests plaintiffs of their adjudicated right to

own and divert water for irrigation?

I]

Was there a “full and fair hearing” for res judicata or

jurisdictional purposes on plaintiffs’ federal claims when

the state supreme court refused to grant plaintiffs’ petition

for rehearing on said federal claims which accrued for the

first time when the court decided sua sponte that the judg-

ment affirmed by the Umited States Court of Appeals

awarding plaintiffs the ownership and right to divert water

was invalid?

Ill

Is there a justiciable case or controversy where plain-

tiffs have been adjudged by territorial and federal courts

to own and have the right to divert “normal surplus waters”

from a watershed and defendant state officials maintain

that they have the right and duty to enforce a later state

supreme court holding that there is no such thing as “nor-

mal surplus water”, that the prior Judgment is invalid and

that plaintiffs have no right to divert water?

i

IDENTIFICATION OF RESPONDENTS,

PLAINTIFFS BELOW

This brief is submitted in opposition to the Petition

for a Writ of Certiorari on behalf of Plaintiffs below and

Respondents before this Court: the Estate of Selwyn A.

Robinson, deceased, Eleanor Robinson, Russell S. Robin-

son, Ruth R. LeFiell, Bruce B. Robinson, Keith 9%. Robin-

son, the Trustees under the Will of Aylmer F. Robinson

and Helen M. Robinson, Individually and as Exeeutrix of

the Estate of Lester B. Robinson.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ears 1

IDENTIFICATION OF RESPONDENTS, PLAIN-

TIFFS BELOW ..... 7 il

TABLE OF CONTENTS iil

TABLE OF AUTHORITIES iv

OPINIONS BELOW | !

STATEMENT OF THE CASE ..... Sethe ane OS

EERIE nein te 10

I. The Hawati Supreme Court’s sua sponte

holding that the Robinsons’ previously ad-

judicated ownership and right to divert nor-

mal surplus water of the Hanapepe River did

not exist, that all water in the river belonged

to the State and that no water could be di-

verted from the watershed was a violation of

SN se ea ccc i cesvreceemaconooeenee

Il. Respondents were entitled to a full and fair

hearing on their federal constitutional claims 15

Ill. The District Court had jurisdiction to enter

a declaratory judgment to protect Plaintiffs’

adjudicated ownership of water rights ........... 16

ae ce cee eccerttrseicrseer ene Fee MMe OE tie 22

iv

TABLE OF AUTHORITIES

Page

Cases: }

Allen v. McCurry, 449 U.S. 90, 95 (1980) _...... ae

Brinkerhoff-Faris Co. vr. Till, 281 U.S. 673, 680

(1930). ........ : jar ae men ep Sorta ahs yo

District of Columbia Court of Appeals v. Peld-

man, 460 U.S. 462 (1983) _... Shc s e Breue a ae

Gibson v. Berryhill, 411 U.S. 564 (1975 ; 48, 30

Hiaring v. Prosise, 462 U.S. 306 (1983) ae &

ITughes v. Washinaton, 889 U.S. 290 (1967) ; 11

Kremer v. Chemical Construction Corp., 406 U.S.

8) RP TIA De a ca nr ed cl OD 16

McBryde Sugar Co. v. Robinson, 54 Wawaii 174,

504 P.2d 1330 (1973), reh’g. denied. 55 Hawaii

960, 517 P.2d 26, appeals dismissed and cert.

denied, 417 U.S. 962, 976 . erareee passim

Muhlker ve. New York and Ilarlem Railroad Co..

197 U.S. 54 (1905) ~ At Thee Bye oe ered aes es |

Nevada v. United States, 463 U.S. 110, 108 S.Ct.

See tek ince oe eee 2]

O’Neil v. Northern Celorado Irrigation Co,, 242

Se ee En cle ees . 12

Reppun v. Board of Water Supply, 65 Wawaii

aa: ee eee a oe cee 21

Rooker v. Fidelity Trust Co., 268 U.S, 418 (1923) 15,15, 16

Stefel v. Thompson, 415 U.S. 452, 468 (1974) 2000000...17, 20

Territory v. Gay, 31 Hawaii 376 (1980) aff’d, 52

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

4) MepMRecesea arcana ss orale Ce URES NaN URANO AES Mes sheave passim

Territory v. Gay, 25 Wawaii 651 (1920), 26 Hawaii

TL Niet a Ml ae ada Scare OM fc pI Tan ee TE 3

Vv

TABLE OF AUTHORITIES-—-Continued

STATUTES:

2S TO. Sestion Ise .... 2 eee

96 USC. Sechonisk: eee

93 U6.0.. Seetion 2... ee eee 2, 20

28 U.S.C. Section 2283 2

42 U.S.C. Section 1983

Hawaii Rev. Stat. Section f-1 ............. 5, 8,12

No. 85-406

oO

VU

In The

Supreme Court of the United States

October Term, 1985

GEORGE R. ARIYOSHI, GOVERNOR,

STATE OF HAWATHI, et al.,

Petitioners,

VS.

SELWYN A. ROBINSON, et al.,

Respondents.

ray

Vv

ON PETITION FOR WRiT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Q

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

-O

OPINIONS BELOW

The opinion of the District Court for the District of

Hawaii (Petitioners’ Appendix C) is reported at 441 F.

Supp. 999 (D. Hawai 1977). The opinion of the United

States Court of Appeals for the Ninth Cirenit (Petition-

ers’ Appendix A) is reported at 753 F.2d 1468 (9th Cir.

1985). The opinion of the Supreme Court of the State of

Hawaii on certified questions from the United States Court

of Appeals for the Ninth Cireuit is reported at 65 Hawaii

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

STATEMENT OF THE CASE

Respondent-Plaintiffs Robinson brought this action un-

der 42 U.S.C. § 1983 and 28 U.S.C. §$ 1331, 1348, 2201 and

2283 for an injunction and declaratory judgment to pre-

vent Petitioner State Officials from interfering with Plain-

tiffs’ vested ownership and right to divert the ‘‘normal

surplus water’’! ef the Hanapepe River on the [sland of

Kauai. Respondents MeBryde Sugar Co., Ltd., Olokele

Sugar Co., Ltd., and Small Owners also own water rights

in the Henapepe River which were similarly threatened

with taking by Petitioners.

Since 189] the Robinsons, doing business as Gay and

Robinson, and their lessees have diverted the normal sur-

plus water out of the Han pepe watershed to irrigate sugar

cane on their land at Makaweli. The Robinsons own the

lands known as the ilis? of Koula and Manauahi, upon which

form the head waters of the Hanapepe River.

In 1928, the Territory of Hawaii sued to enjoin the

diversion of the normal surplus water by the Robinsons

and their lessee, Hawaiian Sugar Co., Ltd., from the Hana-

pepe watershed. The trial court, the Supreme Court of the

Territory of Hawaii and the Cnited States Court of Ap-

. “The term ‘normal surplus water’ has the meaning given the

term by Territory v. Gay, 31 Hawaii 376 (1930) aff’d, 52 F.2d

365 [sic] (9th Cir. 1931), cert. denied, 284 U.S. 671 [sic]

(1931) and refers to ail surplus water other than ‘storm and

freshet surplus waters,’ which are not required for the sat-

isfaction of ‘prescriptive rights’ or ‘appurtenant rights.’ ”

Judgment, May 2, 1978, U.S.D.C., App. 264a.

2 An ili is a sub-division of land in Hawaii which may be part

of or independent of an ahupuaa. An ahupuaa is a larger

division of land usually running from the mountains to the

ocean which may be subdivided into ilis. Territory v. Gay,

31 Hawaii at 380-81.

3

peals for the Ninth Cirenit held that the Robinsons, as the

owners of the ilis of Koula and Manauahi, were the own-

ers of the normal surplus water of the Hanapepe River

and therefore could divert said water for use outside the

watershed of Hanapepe. Territory v. Gay, 31 Hawaii 376

(15380). aff'd, 52 F.2d 356 (9th Cir. 1931), cert. dented, 284

US. 677 (1931) (Gay TT).

The Territory had previously attempted to gain title

to the ili of Noula by filing an ejectment action against the

Robinsons on the theory that the Territory of Hawaii as

suecessor to the King was the owner of the ili of Koula and

that the Robinsons’ predecessor in title had been the gran-

tee of only a small portion of Koula. The Supreme Court

of Hawai determined that the ii of Koula was independ-

ent of the ahupuaa of Hanapepe which was owned by the

Territory and that the Robinsons owned all of WKoula.

Territory v. Gay, 25 Hawaii 651 (1920), 26 Hawaii 382

(1922) (Gay IT).

The Territory was inierested in obtaining title to

Koula not because of the intrinsic value of its mountainous

terrain but because it wanted the use of the enormous

amount of water that collected upon it to form the Hana-

pepe River. The Territory, the owner of the ahupuaa of

Hanapepe downstream of Kouia, owned dry land that did

not have appurtenant water rights. Having lost its claim

of title to Koula and therefore its water, in Gay 7 the Ter-

ritory then brought Gay 77 to enjoin the Robinsons’ diver-

sion of the water.

In Gay I/ the Territory advanced two theories. First,

it claimed that as the successor to the King of Hawaii and

the owner of the ahupuaa of Tlanapepe it was superior in

title and right to the owners of che ilis of Noula and Man-

auahi and therefore owned the surplus waters of the Hana-

pepe River. In the alternative, the Territory argued that

riparian law should be adopted and that the water shquld

be apportioned between the ilis and the ahupuaa of Hana-

pepe with most of the water going to the Territory. Both

these claims were rejected.

In reliance on the availability of water as awarded in

Gay II, Respondent Olekele Sugar Co., bought out Ha-

wallan Sugar Co., Ltd., and entered into a lease with the

Robinsons for the purpose of conducting a sugar planta-

tion at Makawel. Olokele and Gay and Robinson expended

close to a million dollars in developing and improving the

tunnel and ditch system to transport the normal surplus

water from the Hanapepe River to Makaweli. These im-

provements were completed ia 1949.3

Respondent McBryde Sugar Co., owning sugar land to

the east of the Hanapepe River and having acquired appur-

tenant water rights along the Hanapepe River through the

purchase of ancient taro lands, claimed that the total water

which it had previously obtained from the Hanapepe River

had decreased because of the improvements in Gay and

Robinson’s diversion system. It brought suit in the Fifth

Circuit Court against the Robinsons, Olokele Sugar Co.

and the other land owners in the ahupuaa of Hanapepe

having appurtenant water rights including the Territory

of Hawaii to determine the water rights of al! parties in

the Hanapepe River.

3 Findings of Fact 19, 27 and 28, App. 82a, 84a and 85a. (Rec-

ord reference to App. — , are to the Appendix filed by Pe-

titioners, References to R.App. — are to the Appendix filed

with this brief.)

‘The only issues of fact or law tried in McBryde

in the Fifth Circuit Court were: (1) the identity and

extent of the privately or publicly owned land having

appurtenant water rights, and privately or publicly

owned water rights owned separately from land, (2)

the quantity of water attributable to the identified

water rights, (8) MeBryde’s claim by adverse posses-

sion against the Robinsons to prescriptive water out

of G&R’s normal surplus water and the quantity of

such prescriptive water, and, (4) the claims of the

State, MeBryde and plaintiffs to a division of the storm

and freshet surplus.’”

After a four-month trial in 1965, judgment was en-

tered January 30, 1969. The Robinsons, MeBryde and the

State appealed the trial court’s judgment on the last three

issues. No party, including the State, contested Robin-

sons’ ownership of the normal surplus water nor the right

of any party to transport its water out of the watershed

or use it on lands to whieh it was not appurtenant.

On appeal, the Supreme Court of Hawaii, overruling

100 years of precedent, sua sponte held that King Kame-

hameha III had not conveyed surface water with the land

which he granted to his chiefs in the Great Mahele of 1848.

Therefore, the state owned all the surface water subject

to appurtenant rights of native land owners for taro grow-

ing and domestic use. The court also held that the Enact-

ment of Further Principles of 1850, Hawaii Revised Stat-

utes (H.R.S.) §7-16 which guaranteed native tenants on

the land the right to such things as firewood, house tim-

. Finding of Fact 7 (App. 77a)

’ Findings of Fact 3 and 4, App. 75a-76a.

6 ~~ App. 421a, 423a

6

ber, thatch, drinking water, running water, and rights of

way which they had enjoyed prior to the Mahele, codified

the riparian common law as construed by the Massachus-

etts and English courts. MePBryde Sugar Co. v. Robinsen,

D+ Hawaii 174, 504 P.2d 1330 (1978) reh’g. denied, 55

Hawaii 260, 517 P.2d 26, appeals dismissed and cert. de-

nied, 417 U.S. 962, 976 (1974).

Having adopted riparian law requiring the flow of

water in the Hanapepe River to remain in its natural state

Without substantial dimunition, the Supreme Court of

Hawaii destroyed plaintiffs’ property rights by holding

that there was no such thing as normal surplus water

awarded them in Gay J/7, and denying any right to divert

water out of the watershed.

The court summarized its holdings clearly and ex-

plicitly :

Vill Summary

‘1. As between the State and MeBryde, and

McBryde and Gay & Robinson, ihe State is the owner

of the water flowing in the Koula Stream: and Hana-

pepe River. However, the owners of land, having

either or both riparian or appurtenant water rights,

have the right to the use of the water, but no property

in the water itself.

?. The State, MeBryde and Gay & Robinson have

both appurtenant and riparian rights to water in con-

nection with land within the Hanapepe Valley. How-

ever, under claim of such rights, neither MeBryde nor

Gay & Robinson may transport water to another

watershed,

' “There can be no quantity of water which may be deemed

normal daily surplus water and Gay and Robinson is en-

titled to nothing under the ruling of that case.” App. 187a

7

3. Under the doctrine of riparian rights, owners

of land adjoining a natural watercourse have the right

to a flow of a river or stream in the shape and size

given it by nature. Thus, under such right there can

be no normal daily surplus water.

4. MeBryde has no prescriptive right to water,

as no one may claim title or interest against property

owned by the State.

». ‘Storm and freshet’’ water is the property

of the State.’’

And the court concluded so that there could be no

question about its ruling.

‘*Neither McBryde nor Gay & Robinson has any

right to divert water from the Koula Stream and

Hanapepe River out of the Hanapepe Valley into

other watersheds.’”

Upon the rendering of this decision, it was clear that

the Respondents’ vested water rights had been destroyed.

Although the Small Owners and Olokele Sugar Co. had not

appealed, their rights having been determined to their sat-

isfaction in the court below, the court held that they could

not sell or transport their water. Without water Gay and

Robinson, McBryde and Olokele would cease to exist as

sugar plantations in their present form.’

Timely petitions for rehearing were filed by McBryde

and the Robinsons and motions for partial vacation of opin-

ion and or opportunity to present evidence and argument

were filed by Olokele and the Small Owners. The petitions

and motions for the first time presented federal constitu-

tional claims; to wit that transformation of private prop-

9

App. 187a-188a.

Findings of Fact 29, 32 App. &5a-86a.

erty into public property by judicial decree without com-

pensation violated due process of law and that depriva-

tion of property was effected without giving the parties

the opportunity to present evidence and be heard as re-

quired by procedural due process.!°

The Supreme Court of Hawaii refused to hear evidence

or argument on the constitutional issues but entered an

order limiting a rehearing to: ‘‘(1) the construction of

TERS §7-1 and (2) the use of appurtenant water on lands

other than to which the right is appurtenant.’”!

At oral argument, the issues continued to be so limited

and no arguinent was allowed on the constitutional issues.

Subsequently, a per curiam opinion was entered affirming

its prior decision without explanation, two justices dis-

senting. Justice Levinson wrote a long scholarly dissent

setting forth the prior law in Hawaii as to water rights

which was adopted by the United States District Court in

its decision below.’

The Robinsons thereupon filed this action in the United

States District Court and a Petition for Certiorari to this

Court. The other Respondents appealed and _ petitioned

for certiorari.

The Attorney General moved to dismiss the appeals

to this court on the following grounds:

10 Finding of Fact 8, App. 78a.

11 Finding of Fact 9, App. 78a.

12 Finding of Fact 11, App. 79a.

13 App. 63a, 114a.

9

(1) The Federal questions sought to be reviewed were

neither timely nor properly raised nor expressly

passed on by the courts of Hawaii.

(2) The Appeal does not present a substantial federal

question."

The appeals were dismissed for want of jurisdiction

and the petitions for writ of certiorari denied. 417 U.S.

962. 976 (1974).

The United States District Court ruled in favor of

Plaintiffs and other Respondents. It enjoined Defendant

State Officials from their threatened interference with the

Respondents’ vested rights to divert, transport, sell or

lease their water from the Hanapepe River subject to the

right of the State to commence eminent domain proceed-

ings.!5 On appeal, after certifying questions to the Su-

preme Court of Hawaii,'® the United States Court of Ap-

peals affirmed the declaration that the rights awarded in

Gay II were vested. The Court of Appeals decided that a

declaratory jndgment was adequate relief and remanded

the case for entry of a declaratory judgment declaring said

water rights and maintaining jurisdiction in the District

Court to enforce said rights if necessary.” The judgment

on remand was entered on September 24, 1985.'8

14 Respondents’ Appendix B, R.App. 9

1S App. 263a

16 =665 Hawaii 641, 658 P2d 287 (1982)

17 153 F2d 1468, App. 1a

18 ~~ Respondents’ Appendix A, R.App. 1

10

ARGUMENT

I. The Hawaii Supreme Court’s Sua Sponte Hold-

ing That The Robinsons Previously Adjudicated

Ownership And Right To Divert Normal Sur+

plus Water Of The Hanapepe River Did Not

Exist, That All Water In The River Belonged

To The State And That No Water Could Be Di-

verted From The Watershed Was A Violation Of

Due Process.

In Gay IZ, the Supreme Court of the Territory held

that the Robinsons as owners of Koula and Manauahi were

the owners of the normal surplus waters and rejectel

riparian law stating that the adoption of riparian law

with respect to normal surplus weuld ‘‘alter established

rights’’. 31 Hawaii at 396. The court further opined:

‘“‘Water rights, it need hardly be added, have

financia! value. The legal possibility that some of

the water may be wasted by an owner is no justifica-

tion for depriving him of his right thereto without dne

compensation.’? 31 Hawaii at 401.

The judgment of the Supreme Court of the Territory

of Hawaii was affirmed by the United States Court of

Appeals for the Ninth Circuit, the territorial courts being

subject to federal appellate review. 52 F2d 356. Cer-

tiorari was denied by this Court. 284 U.S. 677. Relying

on this federal Judgement. substantial sums were spent to

improve the diversion ditches to transport the water from

IXKoula to Makaweli.

MeBrvde’s suit against all other parties having an

interest in the waters of the Hanapepe River to determine

the righis of various Inndowners to appurtenant, preserip-

tive and storm and freshet water concerned issues which

had been expressly left open in Gay 77, 31 Hawaii at 382,

11

404. In McBryde the State agreed that Gay IT had adjudi-

cated anc was res judicata as to Plaintiffs’ ownership of

the normal surplus waters. Further, the State did not con-

test the right of any person owning water rights to divert

its water out of the watershed. However, contrary to alli

rules of Aierican and common law jurisprudence, the Su-

preme Court of Hawaii sua sponte reversed Gay IT and 100

vears of judicial decisions by holding that all the water in

the streams of Hawaii belonged to the State, subject to the

rights of landowners with appurtenant rights to use the

water solely on their own land. and that no one, and spe-

eificaily neither McBryde nor plaintiffs, had the right to

divert water out of the watershed. As held by the District

Court, such a ruling was a clear violation of due process.

The Supreme Court of Hawaii refused any hearing or

argument on the issues of the constitutionality of its rul-

ing. The court’s decision was constitutionally invalid.

Muhlker v. New York and Harlem Railroad Co., 197 U.S.

d44 (1905).

‘The federal guaranty of due process extends to state

action through its judicial as well as through its leg-

islative, executive or administrative branch of govern.

ment.”’

Brinkerhoff-Faris Co, v. Hill, 281 U.S. 673, 680 (1930).

Since the State had claimed neither ownership of the

normal surplus water nor that water could not be diverted

from the watershed, the decision of the Ilawaii Court was

even more unexpected than that of the Supreme Court of

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

The Supreme Court of Hawaii held that the ‘‘normal sur-

plus water’? awarded to the Robinsons in Gay JI did not

exist. As Justice Stewart stated in his concurring opinion

in Hughes v. Washington:

12

‘For a State cannot be permitted to defeat the con-

stitutional prohibition against taking property with-

out due process of law by the simple device of as-

serting retroactively that the property it has taken

never existed at all.

389 U.S. at 296-297

* * *

Although the State in this case made no attempt to

take the accrued land by eminent doman it achieved

the same result by effecting a retroactive transforma-

tion of private into public property without paying

for the privilege of doing so. Beeause the due pro-

cess clause of the 14th Amendment forbids such con-

fiscation by a state no less through its courts than

through its legislature, and no less when a taking is

unintended than when it is deliberate.”’

389 U.S. at 298

The Hawaii court’s adoption of riparian law based

upon the Principles of 1850'9 was ‘‘a perverse reading of

the law... used as an excuse for giving a_ retrospec-

tive effect to the law’’ impliedly forbidden in O’Ned v.

Northern Colorado Irrigation Co., 242 U.S. 20, 26 (1916).

The Court of Appeals correctly held that the State of Ha-

wail cannot declare by court decision that the Plaintiffs’

vested property rights do not exist.

The correctness of the District Court’s and Court of

Appeals’ rulings on the merits is so clear that it is not

attacked by Petitioners. It is Petitioners’ view, however,

that the sixty-five years of litigation over the water in

the Hlanapepe River should continue while the Supreme

Court of Hawaii and the legislature formulate a ew sys-

19 HRS §7-1, App. 421a, 422a

13

tem of water law for Hawaii based upon state ownership

and control of the water.

II. Respondents Were Entitled To A Full And Fair

Hearing On Their Federal Constitutional Claims.

Petitioners rely on the cases of Rooker v. Fidelity

Trust Co., 263 U.S. 418 (1923) and District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983) as stand-

ing for the proposition that a state supreme court with-

out a hearing can divest property rights from a private

citizen and award those property rights to the state with-

out compensation and contrary to prior federal court ad-

judications, and the only redress a private citizen has is

the chance that a petition for certiorari might be granted

in this Court. Neither Rooker nor Feldman require such

a result. This Court has often ruled that every litigant

should have a full and fair opportunity to litigate his con-

stitutional claims. See Haring v. Prosise, 462 U.S. 306

(1983). Certainly the remand in Feldman with instrue-

tions to consider Feldman’s constitutional challenge to

bar admission rules clearly iaphed that Feldman was en-

titled to a full and fair opportunity to litigate constitu-

tional questions that might have been raised before the

District of Columbia Court of Appeals.

If the federal constitutional claims were not given a

full and fair hearing, they were not ‘‘inextricably inter-

twined’’ with the WceBryde judgment so as to bar jurisdic-

tion in the District Court as were certain claims in Feld-

man. Whether Rooker and [Feldman stand for more than

an application or res judicata, they cannot be read to pre-

vent Plaintiffs from having a full and fair opportunity to

litigate federal constitutional claims.

14

The District Court found that Plaintiffs had no hear-

ing on their constitutional claims in the Supreme Court of

Hawaii. This finding cannot be refuted. In fact, the State

of Hawaii argued in this Court in its Memorandum to ‘Dis-

miss Appeal in Mebrude:

“Oral argument was duly limited to the issues speci-

fied in the Order of June 18, 1973... The per curiam

affirmation of the Supreme Court does not mention,

discuss or pass npon any Federal questions.’”?°

In order to escape review in this Court in McBryde,

the Attorney General of the State of Hawaii successfully

argued that federal constitutional questions were not de-

cided by the Supreme Court of Hawaii. Now, in order to

obtain review, the Attorney General argues that the Su-

preme Court of Hawaii heard and decided these same fed-

eral constitutional issues. Such duplicity should not be re-

warded by the granting of certiorari.

Petitioners argue that because Plaintiffs received

four months from the Supreme Court of Hawaii to pre-

pare their petition for rehearing, which petition was sum-

marily denied with respect to Plaintiffs’ constitutional

claims, Plaintiffs have received due process from the Su-

preme Court of Hawaii and therefore cannot have any

hearing on their federal claims in the United States Dis-

trict Court. Such an argument seems ludicrous and is con-

trary to any decisions of this Court. refusal to grant a

hearing is not the equivalent of a full and fair heaving on

constitutional issues.

Plaintiffs never had a hearing until the United States

District Court heard their ease and upheld their federal

20 Respondenis’ Appendix B, R.App. 11

a

15

rights against the unconstitutional claims of the State of:

ficials. The United States District Court had jurisdiction

to hear such claims and was the only court willing to do so.

Due process requires a full and fair hearing by

an unbiased tribunal. See Gibson v. Berryhill, 411 U.S. 564

(1975). Not only did the Supreme Court of Hawaii decide

sua sponte that Hawaii’s century oid systeta of water law

should be overturned, but the Chief Justice appeared as

amicus curiae in the Court of Appeals urging reversal of

the District Court’s judgment. In spite of two motions re-

questing that he recuse himself, the Chief Justice wrote the

opinion on the certified questions. The opinion held not

only that McBryde was correctly decided and all infevior

courts were bound to follow that decision but it even re-

iterated the argument in the Court of Appeals that the

federal courts had no jurisdiction in this case. Under those

conditions one could hardly expect an unbiased tribunal

would hear Plaintiffs’ federal constitutional claims in the

courts of the State of Hawaii.

Even if refusal to grant a rehearing may be consid-

ered a hearing on the merits, the Distriet Court had juris-

diction to hear the constitutional claims. Plaintiffs’ econ-

stitutional claims were not fairly considered by the Su-

preme Court of Hawaii, and neither res judicata, collateral

estoppel nor the “Pooker doctrine” should bar the hear-

ing of those claims by the federal courts. The rule is clear

with respect to collateral estoppel and logically to other

forms of res judicata.

“Moreover, additional exceptions to collateral es-

toppel may be warranted in Section 1983 actions in

light of the “understanding of Seetion 1983” that “the

federal courts could step in where the state courts

16

were unable or unwilling to protect federal rights.”

[illen vo. McCurry, 449 U.S. at 96, 66 Liked. 3808, 101

S.Ct. 411].

Haring v. Prosise, 462 U.S. at 313-314. ;

As stated in Allen v. McCurry, 449 U.S. 90, (1980):

.“{OJne general limitation the Court has repeatedty

recognized is that the concept of collateral estoppel

eannot apply when the party against whom the earlier

decision is asserted did not have a ‘full and fair oppor-

tunity’ to litigate that issue in the earlier case.”

This Court reiterated in Kremer v. Chemical Con-

struction Corp., 456 U.S. 461 (1982) :

‘We have previously recognized that the judicially

created doctrine of collateral estoppel does not apply

when the party against whom the earlier decision is

asserted did not have a ‘full and fair opportunity’ to

litigate the claim or issue.”’

Id. at 480-81.

The District Court had jurisdiction to determine

whether Plaintiffs had a full and fair hearing, and /’eld-

man and Rooker cannot be vead to deny the District

Court’s jurisdiction to determine whether or not such a

hearing took place. The District Court correctly decided

that no hearing occurred and decided Plaintiffs’ constitu-

tional claims.

III. The District Court Had Jurisdiction To Enter A

Declaratory Judgment To Protect Plaintiffs’ Ad-

judicated Ownership Of Water Rights.

The Court of Appeals held that more than a half cen-

tury of litigation over the ownership of the surplus waters

of the Hlanapepe River was enough and that the case was

ripe for entry of a declaratory judgment. Petitioners seize

upon the Court of Appeals’ decision to use the “less harsh

17

and abusive remedy’’ of declaratory relief (Stefel v.

Thompson, 415 US. 452, 463 (1974)) rather than an in-

junction as grounds for claiming that there was no case or

controversy.

The Court of Appeals’ decision to lift the injunction

was rendered seven vears after the District Court judg-

ment and was based on representations to the Court of

Appeals by Petitioners after they had been enjoined that

no action to enforce MWcBryde was contemplated. The

Court of Appeals noted:

‘the officers still argue, however, that the State is

free under McBryde T and UL to take any action it may

see fit in the future to control the flow of the river.”’

App. 15a

There was never any contention raised by Petitioners

in the District Court nor in the Court of Appeals that

there was no case or controversy.) In fact Petitioners

consistently maintained that it was their duty to enforce

the law as clearly enunciated by the Supreme Court of

Hawaii and that the holdings in WeBryde were res judi-

cata. The issues presented for review on appeal to the

Court of Appeals by Petitioners were (1) whether there

was a denial of due process by the Supreme Court of

Hawaii: (2) whether Webride was res judicata as to the

plaintiffs’ federal claims; and (5) whether the Hleventh

Amendment barred this suit against state officials.?*

In their memorandum to the Court of Appeals on what

constituted the judgment in Hawaii for the purpose of

res judicata after the first argunent, Petitioners argued

that Supreme Court’s holding ino WePryde was entitled

2! ~~ Complaint, paragraph 13, App. 275a, Answer, App. 296a

22 Opening Brief, Issues Presented Respondents’ Appendix C,

R.App. 12-13

18

to res judicata treatment. Petitioners explained why there

was no Judgment on remand and why the Supreme Court’s

holdings were conclusive:

f

“Perhaps the Supreme Court felt that a remand

was not necessary in view of the clear and decisive

language in the partial reversal which held that all

surplus water was vested in the state, and the owners

of ancient water rights could not transport water out

of the Hanapepe Valley for use on kula or arid lands

having no water rights.

In any event, a second amended judgment would

have been perfunctory and should not be the basis for

the court to cousider instant proceeding to be pre-

mature.” 73

As of the date of the memorandum in 1979, the Defendant

state officials including the Attorney General were clear

as to the holding of McBryde, to wit: (1) surplus water was

vested in the state and (2) no water could be transferred

out of the Hanapepe Valley.

Similarly, in 1981 the state officials reiterated that

the WcBryde judgment was enforeeavle by them. In their

brief to the Supreme Court of Hawaii on the certified

questions the State Officials maintained that ‘‘the Depart-

ment. of Land and Natural Resources .. . would enforce

the ruling under McBryde to enjoin the diversion of water

from the Hanapepe watershed.’ ’*4

In their Reply Brief in the Supreme Court on the is-

sue of their right to prohibit diversion of water by Plain-

tiffs, the State Officials maintained:

23 Respondents’ Appendix D, R.App. 17

24 Respondents’ Appendix E, R.App. 18

19

. .. . MeBryde properly held that all surplus water

was vested in the State of Hawaii. The state being

the owner of all surplus water the right to divert

thereof is moot.”

Again in its memorandum to the Court of Appeals

after the Supreme Court of Hawaii’s Answer to Certified

Questions the state officials argued that WcBryde resolved

that: ‘‘All surplus water ... was the property of the

State of Hawaii and impressed with a public trust’’ and

that the foregoing issue was ‘final’... ’’

In answer to the assertion that Plaintiffs’ sugar lands

would be damaged the state officials again magnanimously

offered to sell Plaintiffs back their own water: Again

with respect to Plaintiffs’ vested rights awarded in Gay IT

the state officials reiterated that the case was a ‘‘nul-

ty.”

There ean be no doubt that the State Officials claim

that Plainiffs have no vested interest in the surplus water

of the Hanapepe River. There was no means for Plain-

tiffs to establish and protect these vested rights except

by this action.

If this Court were to dismiss the case, State Officials

could apply to the Fifth Cireuit Court on the Island of

Kauai to enforce the decision of WcBryde. No federal con-

stitutional claims would be heard because the Supreme

Court of Hawaii has declared that those issues have al-

ready been foreclosed by McBryde.8

25 Respondents’ Appendix, F, R.App. 21

26 = Respondents’ Appendix G, R.App. 23-24

27 Respondents’ Appendix G, R.App. 23-24

28 ~=6’McBryde, supra, thus precludes the bringing of any action

in state court which would constitute an appeal of that

case either by way of an original action or a motion for

relief from judgment.” 65 Hawaii 666, 658 P.2d at 305,

App. 41a

20

Petitioners hold out the possibility that equitable de-

fenses might be raised. To leave Plaintiffs to the tender

mercies of the courts of Hawaii at some future date to de-

termine if equitable theories will protect their vested éon-

stitutional rights, when the Supreme Court of Hawaii has

itself refused and directed its inferior courts to refuse to

hear any constitutional claims, is contrary to the letter and

spirit of 42 U.S.C. $1983 and the Declaratory Judgment

Act, 28 U.S.C. 2201.

There is no valid reason for abstention in this case.

No other action is pending. Dismissal of a federal suit

for reasons of abstention or comity ‘‘naturally presup-

poses the opportunity to raise and have timely decided by

a competent state tribunal the federal issues involved.’’

Gibson v. Berryhill, 411 U.S. 564, 577 (1978).

Declaratory judgment relief was proper even if an

injunction was not.

When no state proceeding is pending and thus

considerations of equity, comity, and federalism have

little vitality, the propriety of granting federal decla-

ratory relief may properly be considered independent-

lv of a request for injunctive relief.

Stefel v. Thompson, 415 U.S. at 462.

[EK ]ngrafting upon the Declaratory Judgment

Act, a requirement that all of the traditional equitable

prerequisites to the issuance of an injunction be satis-

fied before the issuance of a declaratory judgment is

considered would defy Congress’ intent to make de-

claratory relief available in cases where an injunction

would be inappropriate.

Id. 415 U.S. at 471.

21

The continuing threat of the State Officials to enforce

the McBryde holding and the claim by the State Officials

that the State owns the surplus water of the Hanapepe

River provided a case and controversy that was properly

before the District Court and the Court of Appeals. This

is not a case where state regulations have been enacted and

their effect needs clarification by a state court. No laws

or regulations have been adopted pertaining to the sur-

plus water of the Hanapepe River. There has been a

declaration by the Supreme Court of Hawaii in WceBryde

divesting Plaintiffs of their property rights. This ruling

was reiterated by the Supreme Court of Hawaii in its

answers to certified questions and explained more clearly

in the companion case of Reppun v. Board of Water Sup-

ply, 65 Hawaii 531, 656 P.2d 57 (1982).”°

To say that the State holds the water in public trust

for its people is no defense to Plaintiffs’ ciaim that their

property has been taken without due process of law. The

District Court did not erroneously conceive of water

rights as similar to bushels of wheat as Petitioners indi-

eate in citing Nevada v. United States, 463 U.S. 110, 103

S.Ct. 2906 (1983). In any event the Nevada case holds

that water rights become vested and fixed by res judicata

and it stands for the proposition that water rights are

property and once determined should not be changed.

‘‘The policies advanced by the doctrine of res judicata

perhaps are at their zenith in cases concerning real

property, land and water.’’ 108 S.Ct. at 2918 n.10

29. In Reppun Chief Justice Richardson concludes that pre-

vious Hawaiian judges, induced by western concepts of

property contrary to ancient Hawatian custom, erroneous-

ly granted property rights in water. 65 Hawaii at 547-48.

bho

bo

Plaintiffs’ property rights have been severely dam-

aged and threatened by Petitioners who rely on the uncon-

stitutional holdings of the Supreme Court of Hawaii to for

their position. A clear case and controversy exists. :

co)

CONCLUSION

Petitioners’ position is untenable on the merits. It is

unlikely that a similar case will arise again and there is

no compelling reason why this court should grant cer-

tiorari. The decision of the Court of Appeals is clearly cor-

rect. on the facts and law and should be allowed to stand

without further review.

Respectfully submitted,

Of Counsel:

Hoppick, Retnwarp, O’Connor

& Marrack

ALEXANDER C. Marrack

2400 PRI Tower

Grosvenor Center

733 Bishop Street

Honolulu, Hawaii 96813

(808) 524-8350

Counsel of Record for Respondents

Selwyn A. Robison, et al.

No. 85-406

fal

Vv

In The

Supreme Court of the United States

October Term 1985

fay

YU

GEORGE R. ARTYOSHI, GOVERNOR,

STATE OF HAWATI, et al.,

Petitioners,

SELWYN A. ROBINSON, et al.,

Respondents.

ray —

UU

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—— ray

Vv

APPENDIX TO THE BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

O

Of Counsel:

Hoppick, Reinwaup, O’Connor

& Marrack

ALEXANDER CC. MARRACK

2400 PRI Tower

Grosvenor Center

733 Bishop Street

Honolulu, Hawaii 96813

(SO8) 524-8350

Counsel of Record for Respondents

Selwun A. Robinson, et al.

RESPONDENTS’ APPENDIX

TABLE OF CONTENTS

Page

Appendix A—Amended Judgment After Remand, filed

in the U.S. District Court on September 24,

(RA DC RENIN Re Y App.

Appendix B—-State of Hawaii’s Motion to Dismiss

Appeal from the Supreme Court of Hawaii in

Nos. 73-1440, 73-1441, 73-1442, filed in the Su-

preme Court of the United States, dated May

ace ee ee ee App.

Appendix C—Opening Brief of State Officials, De-

fendants-Appellants, CA No. 78-2264 filed in the

Court of Appeals for the Ninth Circuit dated Au-

er ae, sere (ORCOTHER) App.

Appendix [D—State Officers Memorandum on the

Documents Which Constitute the Judgment for

Res Judicata Purposes under the Law of Hawaii,

CA No. 78-2264 filed in the Court of Appeals for

the Ninth Cirenit dated September 21, 1979... App.

Appendix E—Opening Brief of State Officials to

Certified Questions from the United States Court

of Appeals for the Ninth Cireuit to the Supreme

Court of Hawaii, No. 8241 filed in the Supreme

Court of Hawaii dated July 30, 1981 (excerpts)

2 AG Tadeo atest ct eR Re oe EEE App.

Appendix F—Reply Brief of State Officials, No, 8241

filed in the Supreme Court of Hawaii dated Jan-

Ee Be, bee LOKOOR IG) oe. App. °

Appendix G—Memorandum by Appellants on the Ef-

fect of Hawaii Supreme Court’s Opinion of De-

cember, 1982. on the Instant Case and the An-

swers to the Certified Questions, (A No, 78-2264

filed in the Ninth Cirenit Court of Appeals dated

October 3, 1985 (excerpts) 0... ERO tienes App. :

1

ee

14

18

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWATI

CIVIL NO. 74-52

SELWYN A. ROBINSON, et al.,

Plaintiffs,

VS.

GEORGE R. ARTYOSHI, et al.,

Defendants.

AMENDED JUDGMENT AFTER REMAND

(Filed September 24, 1985)

AMENDED JUDGMENT AFTER REMAND

This is an action for declaratory judgment and in-

junctive relief,

Pursuant to the decision of the Court rendered Octo-

her 26, 1977. and the decision of the United States Court

of Appeals for the Ninth Cireuit rendered February 20,

1985, 753 F.2d 1468, rehearing denied May 14, 1985,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED:

1. The following definitions shatl apply to this Judg-

ment:

a. The phrase ‘*defendant State Officials’’ refers to

George R. Ariyoshi, Governor of the State of Hawaii, Cor-

inne K.A. Watanabe, Attorney General, Andrew S.O. Lee,

Deputy Attorney General, Susumu Ono, John Y, Arisumi,

/. Douglas Ing, Moses W. Kealoha, Roland H. Higashi

and Leonard H. Zalopany, Chairman and Members of the

Board of Land and Natural Resources, as well as their

App. 2

successors in office, agents, servants, employees and attor-

neys and those persons in active concert or participation

with them who receive actual! notice of this Judgment by

; i t

personal! service or otherwise.

b. The term ‘‘Small Owners”’ refers to defendants

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

Fui Society, Lapaz Francisco, Marcellino Francisco, Albert

KX. Kaailau, Linda P. Kaiakapu, Ann N. Kali, Harriet U.

Kano, Junichi Kano, Kiyeshi Kimata, Arnold W.IF*. 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

Monaka, Shigekichi Nonaka, Takano Nonaka and Takao

Nonaka.

e. The term ‘‘normal surplus water’’ has the mean-

ing given the term by Territory v. Gay, 31 Taw. 376 (1930),

aff’d 52 F.2d 365 (9th Cir.), cert. denied, 284 U.S. 671

(1931) and refers to all surface waters. other than ‘‘storm

and freshet surplus waters,’’ which are not required for

the satisfaction of ‘‘prescriptive rights’? or ‘appurtenant

rights’’, as defined under the law of Hawaii as it existed

prior to McBryde.

d. ‘‘McBryde’’ veters to the decision of the Hawaii

Supreme Court in McBryde Sugar Co. v. Robinson, 54

Haw. 174, 504 P.2d 1330, aff’d on rehearing, 55 Haw. 260,

517 P.2d 26 (1973), appeal dismissed for want of jurisdie-

tion and cert. demed, 417 U.S. 962, 976 (1974). and any

judgments or orders entered pursuant thereto.

e. The term ‘‘Hanapepe River’’ includes its tribu-

taries, Manuahi and Koula.

App. 3

2. Plaintiffs Robinson, et al., MeBryde Sugar Com-

pany, Limited, Olokele Sugar Company, Limited, and the

Smal! Owners are entitled (a) to transport waters of the

Hanapepe River in which they have water rights for use

beyond the watershed of origin or for use on lands other

than those giving rise to water rights, and (b) to transfer

or reserve their water rights in the waters of the Hanapepe

River by deed, lease, or other conveyance with or without

a transfer of the lands to which the water rights relate.

Under the laws of the State of Hawaii, the Plaintiffs’ own-

ership of the rights to take normal surplus water, and the

rights of Plaintiffs, MeBryde Sugar Company, Limite,

Olokele Sugar Company, Limited, and the Small Owners

to take, transport and use all waters in which they have

water rights are vested property rights, and are capable

of sale, lease, transfer, reservation or other conveyance.

Transferees of any such water rights, whether originally

denominated as appurtenant, prescriptive or surplus wa-

ters, have the same rights as their transferors. Enforce-

ment of the rulings in Mc2ryde which are contrary to the

declarations or provisions of this judgment would result

in an unconstitutional taking of vested property rights of

the Plaintiffs. MeBryde Sugar Company, Limited, Olokele

Sugar Company, Limited, and the Small Owners. The de-

fendant State Officials, althongh they deny that they are

presently planning to do so, have heretofore asserted the

right and power on behalf of the State to seize, take, con-

fiseate and appropriate the private water rights in the

Hanapepe River from their rightful owners. Interference

contrary to the declaratory provisions of this judgment by

the defendant State Officials with the rights of Plaintiffs,

MeBryvde Sugar Company, Limited, and Olokele Sugar

App. 4

Company, Limited. to withdraw water from the Hanapepe

River and to transport and use it would do substantial and

irreparable injury and would be financially disastreus to

them. <Any interruption iu their diversions would do im-

mediate and irreparable damage. The Plaintiffs, MeBryde

Sugar Company, Limited, and the Small Gwners have ap-

purtenant water rights and have been using water in part

on land to which the water rights are not appurtenant,

and, if unable either to continue such use or to sell such

rater rights to owners of other land, they would be sub-

stantially and irreparably injured. It is impossible to

ascertain precisely the extent of the economic injury which

would result from interference by the defendant State Offi-

cials with such private water rights.

3. JeDbryde constitutes a cloud on the surface water

rights of the private property owners, but because the de-

fendant State Officials in these proceedings have taken

no steps to interfere with, and have denied that they are

presently planning to take steps to interfere with the prop-

erty of the Plaintiffs, McBryde Sugar Company, Limited,

Olokele Sugar Company, Limited, and the Small Owners,

as declared above, an injunction against the defendant

State Officials may be premature at this time. Thus, no

injunctive relief will be granted at this time since the

declaration of the rights of the parties herein would ap-

pear sufficient to protect the rights of the private parties.

This Court retains continuing jurisdiction to enjoin the de-

fendant State Officials from conduct in violation of the

property rights declared above, including, without limita-

tion thereto, any injunction necessary to prevent the de-

fendant State Officials from:

App. 95

a. Enforcing or attempting to enforce McBryde to

the extent that it adjudicated (1) that Plaintiffs are not

the owners of the water rights to the normal surplus waters

of the Hanapepe River, (2) that Plaintiffs. MeBryde Sugar

Company, Limited, Olokele Sugar Company, Limited, and

the Small Owners, to the extent of their water rights, may

not transport waters from the Hanapepe River for use be-

yond the watershed of origin or for use on lands other

than those giving rise to water rights, (3) that Plaintiffs,

MeBryde Sugar Company, Limited. Olokele Sugar Com-

pany, Limited, and the Small Owners, to the extent of

their water rights, may not sell, lease, reserve or otherwisé

transfer such water rights together with, or severed from,

any of the lands which criginally gave rise to those water

rights, (4) that any holder of reserved water rights, or

transferee of water rights may not transport and use the

waters covered by such reserved or transferred rights to

the same extent as prior to the reservation or transfer, or

(5) that a severance of water rights from the lands to

which originally appurtenant results in a forefeiture of

such rights.

bh. Preventing or attempting to prevent the use by

Plaintiffs or their lessee, Olokele Sugar Company, Lim-

ited, of the normal surplus waters of the Hanapepe River

on the basis of WePryde or on the basis of a claim that

Plaintiffs do not own or have water rights to the normal

surplus waters of the Hanapepe River; or

ce. Preventing or attempting to prevent Plaintiffs,

MeBryde Sugar Company, Limited, Olokele Sugar Com-

pany, Limited, or the Small Owners from transporting

from the Hanapepe River waters in which they have water

App. 6

rights for use beyond the watershed of origin or for use on

lands other than those giving rise to water rights either

on the basis of MeLryde or on the basis of a claim that the

water rights of said parties do not entitle them to utilize

water beyond the watershed of origin or on lands other

than those giving rise to water rights; or

d. Preventing or attempting to prevent the consump-

tive use by Plaintiffs. Olokele Sugar Company, Limited,

MeBryde Sugar Company, Limited, or the Small Owners,

or any transferee of water rights from them, of their water

rights under any claim that such water rights must be re-

turned to Hanapepe River after use pursuant to the doe-

trine of riparian rights as newly declared in McBryde, or

that any such use of their water rights is prohibited by

McLryde’s declaration that the Hanapepe River must flow

‘‘in the shane and size given it by nature’’.

4. Nothing herein shall prohibit the defendant State

Officials from instituting eminent domain proceedings for

the acquisition (upon payment of just compensation) of

all or any part of Plaintiffs’ water rights or the water

rights of any other party to this proceeding.

5. Under the law of Hawaii existing prior te Me-

bryde, it was clearly established that water rights may be

acquired by prescriptive use and that downstream owners

may acquire rights against an upstream owner, contrary

to the riparian doctrine. Because, however, this Court is

unable to positively conclude that a federal question is in-

volved in the Counterclaim of MeBryde Sugar Company,

Limited, against the Plaintiffs for prescriptive water rights,

said Counterclaim is dismissed without prejudice. Unless

determined by agreement of the parties in interest, the

ultimate determination, to be made in the light of the de-

cisions rendered by this Court and the Ninth Cireuit Court

App. 7

of Appeals, of the prescriptive water rights of McBryde

Sugar Company, Limited, and of the allocation of storm

and freshet surplus waters, is left to the Hawaii Fifth

Cireuit Court sitting as statutory water commissioner and

exercising the jurisdiction that was retained by the Amend-

ed Judgment in Special Proceeding No. 108, or to any other

state court having jurisdiction thereof or of any appeal

therefrom.

6. This Court hereby retains continuing jurisdiction

in this case to hear and determine at any time hereafter

any application which the parties may make with respect

to this judgment and to take such action as may be neces-

sary or appropriate to assure compliance with this judg-

ment by the parties hereto and their successors.

DATED: Honolulu, Hawaii, Sept. 23, 1985.

/s/ Martin PENCE

United States District Judge

APPROVED AS TO FORM:

/s/ Alexander C. Marrack

Attorney for Selwyn A.

Robinson, et al.

/s/ J. Russell Cades

Attorney for McBryde

Sugar Company, Limited

/s/ Robert B. Bunn

Attorney for Ida Albarado, et al.

/s/ John J. Rapp

William F. Quinn

Attorneys for Olokele Sugar

Company, Limited

Corinne kK. Watanabe

James Dannenberg

Attorneys for State Officials

App. 8

APPENDIX B

| IN THE

SUPREME COURT OF THE UNITED STATES

f

OCTOBER TERM, 19735

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

McBRYDE SUGAR COMPANY, LIMITED, and

OLOKELE SUGAR COMPANY, LIMITED, Appellants,

VS.

STATE OF HAWAII, et al., Appellees.

SELWYN A. ROBINSON, et al., Pelitioners,

Vs.

STATE OF HAWAII, et al., Respondents.

IDA ALBARADO, et al., Petitioners,

Vs.

STATE OF HAWATI, 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

App. 9

Appellee-Respondent, State of Hawaii, moves this

Honorable Court to dismiss the appeal herein on the fol-

lowing grounds:

(1) The Federal questions sought to be reviewed were

neither timely nor properly raised nor expressly

passed on by the Courts of Hawaii.

(2) The appeal does not present a substantial I'ed-

eral question.

STATEMENT

In 1959, the present suit was instituted by McBryde

Sugar Company, Limited (‘‘McBryde’’) pursuant to Part

III, Chapter 664, Hawaii Revised Statutes, to adjudicate

the ownership of all waters of the Hanapepe Valley basin.

At the hearing before the trial Court, appellants and

petitioners did not raise any Federal Constitutional ques-

tions, and the trial Court, on December 10, 1968, made a

determination of the water rights of the landowners.' <Al-

though the trial court noted that diversions of water had

occurred, the Court did not reach the legality of such di-

versions.”

All references to appendix made herein refers to “Joint Ap-

pendix to Jurisdictional Statement and Petitions for Writs of

Certiorari’’ submitted on behalf of Appellants and Petitoners.

Decision (App. 4); Conclusions of Law No. 13 (App. 55-57).

2Decision, Findings 11 and 15 (App. 7, 8-9); Finding 30 (App.

13).

App. 10

Separate appeals to the Supreme Court of Hawaii

were filed by McBryde, Gay & Robinson and the State of

Hawaii, but no Federal Constitutional questions were pre-

sented. ,

On June 18, 1973, the Supreme Court of Hawaii en-

tered an order directing McBryde, Gay & Robinson, the

State of Hawaii and the Small Owners to file briefs lim-

ited 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 shail also have a right to drink-

ing water, and running water, and the right of

way. The springs of water, running water, and

roads shall be free to all, on all lands granted in

fee simple; provided, that this shall not be ap-

plicable to wells and water-courses, which indi-

viduals have made for their own use.’

Is the foregoing statute material to the determination

of the water rights of the parties in this case? If so,

why, if not, whv?

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 appur-

tenant water rights for raising taro at the time

of the Mahele or the Land Commission Award.

The trial court found certain parcels were en-

titled to appurtenant water rights. Under what

principle or theory of law are the owners en-

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

App. il

titled to apply the appurtenant water rignts to

parcels of land other than that to which the court

found the right appurtenant ?’’

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

Court to file a brief directed to the same issues.

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 majority of the

Supreme Court finding ‘‘no reason to change the decision

filed herein.’ The per curtam affirmation of the Su-

preme Court does not mention, discuss or pass upon any

Federal questions.

QUESTIONS PRESENTED

1) Where federal constitutional questions are neither

timely nor properly raised in proceedings to determine the

rights of landowners to appurtenant, riparian, and surplus

raters, and the Supreme Court of Hawaii does not pass on

any federal question, does the jurisdiction of the United

States Supreme Court attach on appeal from the state

judgment?

2) Where the Supreme Court of Hawaii makes a de-

termination of the rights of landowners to appurtenant,

riparian and all surplus waters by construing for the first

time a state statute and its decision is made upon a fair and

455 Haw. at 260 (App. 114).

App. 12

substantial basis, does the jurisdiction of the Supreme

Court of the United States attach on appeal from the state

judgment?

3) Where a state statute involves the ‘‘rights of the

people’’ to appurtenant, riparian and surplus waters, and

the sole issue before the state courts is a determination of

such water righis, is there a substantial federal constitu-

tional question involved?

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA NO. 78-2264

SELWYN A. ROBINSON, et al.,

Plaintiffs-Appellees,

Vs.

GEORGE R. ARIYOSHI, Governor, et al.,

Defendants-Appellants,

and

McBRYDE SUGAR COMPANY, LIMITED, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF HAWAII

OPENING BRIEF OF SATE OFFICTALS,

DEFENDANTS-APPELLANTS

ISSUES PRESENTED FOR REVIEW

Where issues not raised on appeal are ruled upon by

the appellate court swa sponte and affirmed after briefs

are filed and oral argument are had upon petition for re-

hearing:

App. 13

1. Is there a denial of due process, equal protection

and full faith and credit where the appellate ccurt over-

rules prior laws on property?

2. Are the issues so decided barred from subsequent

litigation in Federal court under the doctrine of res judi-

rata?

3. Does the Eleventh Amendment bar subsequent ac-

tions against State Officials on said issues?

App. 14

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA NO. 78-2264

SELWYN A. ROBINSON, et al.,

Plaintiffs- Appellees,

vs.

GEORGE R. ARLYOSHI, Governor, et al.,

Defendants-Appeliants,

and

MCBRYDE SUGAR COMPANY, LIMITED, et al.,

Defendants-Appellees.

STATE OFFICERS MEMORANDUM ON THE DOCU-

MENTS WHICH CONSTITUTE THE JUDGMENT FOR

RES JUDICATA PURPOSES UNDER THE LAW OF

HAWAII

Upon conclusions of oral argument on September 4,

1979, the Court requested counsel to submit authorities on

the above subject.

In the instant case, the Supreme Court of Hawaii in

McBryde v. Robinson rendered its opinion on January 10,

1973, 54 Haw. 174. Petition for rehearing was granted.

Briefs were duly filed, oral argument held and the Su-

preme Court by per curiam opinion dated December 20,

1973, affirmed its earlier decision. 55 Haw. 260.

Judgment on appeal in the Supreme Court of Hawaii

was filed on December 28, 1973.

The instant case was filed in the Federal District

Court on February 14, 1974, seeking to enjoin the State

App. 15

Officers from enforcing the opinion of the State Supreme

Court in McBryde v. Robinson.

Notice of Appeal to the Supreme Court of the United

States was filed on February 25, 1974, and Petition for

Writ of Certiorari was filed on the 19th day vf March, 1974.

Certiorari was denied June 17, 1974, 417 U.S. 962.

From the foregoing, it can be readily seen that no

judgment was entered by the Fifth Cireuit Court since

the opinion of the State Supreme Court. The last judg-

ment entered by the Fifth Cireuit Court or trial court was

the Amended Judgment filed on the 30th day of January,

1969, which is the judgment that was the swbject of appeal

before the State Supreme Court.

To answer the question posed by this Court for apph-

eation of the documents which constitute the judgment

for res judicata purposes under the law of Hawai, the

authorities hold that the judgment or decree, together

with any part of the prior record considered pertinent inay

be pleaded as the “judgment” for res judicata purposes.

Hapai v. Brown, 21 Haw. 756 (1913), involved an ae-

tion to quiet title where the defendant claimed title to

the whole land on the basis of a prior adjudication. In

support thereof, defendant put in evidence certified copies

of the record of the Supreme Court in the case entitled

Kahoiwai v. Paakuku, including a certified copy of a Deed

on which claim of title was based. The court said:

‘*Tt is now too well settled, however, to admit a doubt

that if upon a plea of res judicata the judgment relied

upon as constituting the former adjudication does

not of itself declare with certainty the precise scope

of the matters adjudged, resort may be had, in aid

App. 16

of its interpretation in this respect, to the pleadings,

the opinion of the trial court, the findings of faet and

the testimony.”

Similarly, Carey v. Discount Corporation, 37 Haw.

295 (1946), involved two cases consolidated by the Su-

preme Court for reason that both involved a plea in bar

of res judicata, the pleading of defendant included:

“The pleadings, decisions, Judgments, record in

the circuit and supreme courts, briefs and other writ-

ings on file in the circuit court in the law action and

in the supreme court were incorporated in the plea

of res judicata. Id. at 301.

The Supreme Court of Hawaii in discussing res judi-

dicata, like courts of other jurisdictions, refer to the Judg-

ment or decree in a prior litigation as constituting a bar

to subsequent attempts to relitigate issues that were liti-

vated or were not litigated but should have been raised

between the same parties or their privities. State v. Ha-

watian Dredging Co., 48 Haw. 152, 165 (1964) ; Pertelmann

v. Lucas, 35 Haw. 335, 342 (1940); Glover v. Fong, 42 Haw.

560 (1958); Makainai v. Lalakea, 29 Haw. 482 (1926).

It appears from a discussion of the above cases that

although the judgment is the basis for a plea in bar of

res judicata, the courts will consider not only the trial!

court’s judgment or deeree but also the records of the

trial court and the opinion of the Supreme Court. Hence,

in the instant case, although a second amended judgment

was not entered by the State trial court after the State

Supreme Court opinion, the opinion of the Supreme Court

and the judgment on appeal in the Supreme Court may

be considered for res judicata purposes.

Also, it is to be noted that the Suprenie Court made

the concluding statement, “affirmed in part; reversed in

App. 17

part.” The opinion did not contain language of remand

to the lower court.

Perhaps the Supreme Court felt that a remand was

not necessary in view of the clear and decisive language

in the partial reversal which held that all surplus water

was vested in the State, and that the owners of ancient

water rights could not transport water out of Hanapepe

Valley for use on kula or arid iands having no water

rights.

In any event, a second amended judgment would have

been perfunctory and should not be the basis for this

Court to consider the instant proceeding to be premature.

DATED: Honolulu, Hawaii, September 21, 1979.

/s/ Andrew S. O. Lee

Deputy Attorney General

Attorney for State Officers

App. 18

APPENDIX E

NO. 8241

IN THE SUPREME COURT OF THE

STATE OF HAWAII t

OCTOBER TERM 1980

CERTIFIED QUESTIONS

from the

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, 9th Cireuit

No. 78-2264

SELWYN A. ROBINSON, et al.,

Appellees,

VS.

GEORGE R. ARIYOSHI. Governor, et al.,

Appellants,

and

McBRYDE SUGAR COMPANY, LIMITED, et. al.,

Appellees.

OPENING BRIEF OF STATE OF HAWAITL TO

CERTIFIED QUESTIONS FROM THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT TO THE SUPREME COURT

OF HAWAII

ARGUMENT

Certified Question (1)

MAY ANY HAWAII STATE OFFICIAL EXECUTE

ON THE JUDGMENT ENTERED IN MWcBRYDE SUG-

AR CO. v. ROBINSON, SUPRA, TO ENJOIN ROBIN-

SON, McBRYDE, OLOKELE, OR THE SMALL OWN-

ERS FROM DIVERTING WATER FROM THE HANA-

PEPE OR KOULA WATERSHEDS?

YES.

McBryde held that appurtenant water rights may be

used only on Jands in Hanapepe Valley where the right

App. 19

originated and cannot be diverted outside the Valley to

Kula lands or lands not having such appurtenant water

rights. 54 Haw. 191.

The diversion of water from said lands to other lands

was one of the principle issues in Robinson +. Ariyoshi,

441 F.Supp. 559, 561, 586 (D.C. Haw. 1977), where the

lower court judge erroneously held that the State Offici-

als were enjoined from interfering with the right of Gay

and Robinson, McBryde and the other persons having

water right interest in Hanapepe to divert water from

Hanavepe Vallev to lands outside of Hanapepe Vallev.

} ; } ;

The Department of Land and Natural Resources hav-

ing the power of management, administration and control

over public lands, and water resources under Chapter 171,

Hawaii Revised Statutes, § 171-5, H.R.S., would enforce

the ruling under McBryde.

Certified Question (2)

MAY THE STATE OF HAWAII CLAIM COLLATEAL

ESTOPPEL OR BAR AND MERGER EFFECT FROM

McBRYDE SUGAR CO. v. ROPINSON, SUPRA, IF Tilk

STATE BRINGS AN ACTION EITHER TO QUIET

TITLE TO THE WATER OF THE HANAPEPE OR TO

ENJOIN THE DIVERSION OF WATER FROM THE

HANAPEPE?

YES.

App. 20

APPENDIX F

NO. 8241

IN THE SUPREME COURT OF THE STATE

OF HAWAII

OCTOBER TERM 1981

CERTIFIED QUESTIONS

from the

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 78-2264

SELWYN A. ROBINSON, et al.,

Appellees,

VS.

GEORGE R. ARLYOSHI, Governor, et al.,

Appellants,

and

McBRIDE SUGAR COMPANY, LIMITED, et al.,

Appellees.

REPLY BRIEF OF STATE OFFICIALS

The differences of the arguments can be pinpointed

to Question 2 and Question 6.

Question 2 reads: MAY THE STATE OF HAWAII

CLAIM COLLATERAL ESTOPPEL OR BAR AND

MERGER EFFECT FROM McBRYDE SUGAR CO v.

ROBINSON, SUPRA; IF THE STATE BRINGS AN

ACTION EITHER TO QUIET TITLE TO THE WA-

'McBryde Sugar Co. v. Robinson, 54 Haw. 174, 502 P.2d

330, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal

dismissed for want of jurisdiction and cert. denied, 417 U.S.

962 (1974).

App. 21

TER OF THE HANAPEPE OR TO ENJOIN THE

DIVERSION OF WATER FROM THE HANAPEPE?

Question 6 reads: UNTIL McBRYDE, SUPRA WAS

DECIDED, HAD THE ISSUE OF WHO OWNED SUR-

PLUS WATER BEEN A SETTLED QUESTION IN

HAWAII LAW?

And, permeating the contentions is the effect of Ter-

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

Cir.), cert. denied 284 U.S. 677 (1931) (Gay II).

* * *

In conclusion, the State officers contend that Gay II

ruling that G& R was the owner of normal surplus water

was a nullity for reasons that (1) no riparian water rights

were determined; (2) no ancient appurtanant water rights

were determined; and (3) the quantum of water consti-

tuting normal surplus was not determined. Until Me-

Bryde, the ownership of surplus water was not a settled

question in Hawaii. McBryde properly held that all sur-

plus water was vested in the State of Hawaii. The State

being the owner of all surplus water, the right to divert

thereof is moot.

The prohibition of diversion of ancient appurtenant

water rights which were determined by the quantum of

water necessary to cultivate ancient taro patches is con-

sonate with the origin, use and measurement of water

rights.

DATED: Honolulu, Hawaii, January 27, 1982.

/s/ Andrew 8. O. Lee

Deputy Attorney General

Attorney for State Officials

App. 22

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA. NO. 78-2264

D.C. NO. 74-0032

HAWAII; M.P.

SELWYN A. ROBINSON, et al.,

Plaintiffts-A ppellees,

GEORGE R. ARTYOSHI, Governor, et al.,

Defendants-Appellants,

and

McBRIDE SUGAR COMPANY, LIMITED, et al.,

Defendants-A ppellees.

MEMORANDUM BY APPELLANTS ON THT

EFFECT OF HAWAIT SUPREME COURT'S

OPINION OF DECEMBER, 1982, ON THE

INSTANT CASE AND THE ANSWERS

TO THE CERTIFIED QUESTIONS

and

CERTIFICATE OF SERVICE

TANY S. HONG 821

Attorney General

State of Hawaii

ANDREW S. 0. LEE 298

Deputy Attorney General

335 Merchant Street

Rm. 214-B Old Federal Bldg.

Honolulu, Hawaii 96813

Tel. No. (808) 548-8939

Attorneys for Appellants

App. 23

McBryde resolved the issues on:

1. Which tands are ancient taro lands, hence, en-

titled to water to cultivate taro under the ancient Hawai-

ian culture. The findings by the trial court on this issue

was affirmed in McBryde.

2. The duty of water to cultivate taro under the

ancient method was 50,050 gallons of water per acre per

day. McBryde affirmed the trial court on this issue.

3. All surplus water, including normal surplus water

as well as storm and freshet surplus water, awarded to

Gay and Robinson (G&R) (Appellee) by the trial court

was reversed in McBryde, and all surplus water—normal

daily surplus, storm and freshet surplus and appurtenant

water awarded but not used, was the property of the State

of Hawaii and impressed with a publie trust.

4, Prescriptive water rights awarded to McBryde

Sugar Company by the trial court sitting as a Water Com-

missioner was reversed in McBryde on the basis that since

the State was the owner of all surplus water and the stat-

ute of limitation does not run against the State, preserip-

tive water rights became moot.

The Supreme Court’s Answer held that preclusion

would apply only to the issues that were decided by the

court. The foregoing issues are final. There ean be no

confusion or misunderstanding on said issues by Appel-

lees. Res judicata, collateral estoppel, merger and bar

would preclude said issues in future litigation.

The Supreme Court’s Answer clarified McBryde by

stating that the prohibition against transport of water

outside of the water shed of Hanapepe for use on lands

not entitled to ancient appurtenant water rights was not

App. 24

an absolute prohibition. The State understood this to be

the rule in McBryde. Appellees, however, in an uproar,

claimed that the prohibition was an absolute prohibition

which would cause the destruction of sugar plantations

which use such transported water. The State, after Mc-

Bryde, in oral argument as well as in its several briefs

contended that as the owner of the surplus water the State

may sell such water to Appellees and use such water for

the general benefit and welfare of the public. This is

covered in Argument II. This arguinent concerning sur-

plus water will also be covered under the subject of whether

McBryde reversed settled law, Argument ITT.

McBryde did not determine who were riparian own-

ers entitled to riparian water rights. This subject was

left for future determination and none of the parties put

on proof on this issue nor litigated this issue. [TF urther-

more, McBryde did not decide at what point in diversion

of water for non-taro use would subject the diverters to

an injunction. No preclusion would apply to these issues.

* * *«

surplus water to water non-tarro land, should have pre-

clusive effect on the State.

Territory vs. Gay has been fully discussed, briefed

and argued. The State contends, inter alia, that the case

is a nullity since there is no distinction among normal

surplus water, storm and freshet water and water al-

lotted but not used. The federal district court when

confronted with this question remanded the question of

identification of storm and freshet water to the trial court

or water commission and overruled McBryde by award-

ing normal surplus water to G&R without defining or

quantifying such water.