# Amicus Curiae Brief — Ariyoshi v. Robinson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0260%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 1018

## Text

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Supreme Court, U.S,
rigeE se

No. 85-406 ~ Nov 15 1985

irt. F. SPANIOL, JR.

In the Supreme Court ««

|

OF THE
United States

OCTOBER TERM, 1985

GeorGE R. ArRIyosH!, Governor, STATE OF HAWAII, et al.,
Petitioners,

¥.

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 THE STATES OF ALASKA, CALIFORNIA,
MONTANA, NEVADA, NORTH DAKOTA, OREGON,
UTAH, WASHINGTON AND WYOMING
AS AMICI CURIAE
IN SUPPORT OF THE PETITION
FOR A WRIT OF CERTIORARI

= BOWNE OF SAN FRANCISCO, INC. « 190 NINTH ST. « S.F.. CA 94103 « (415} 864-2300

JOHN K. VAN DE Kamp
Attorney General of
the State of California
ANDREA SHERIDAN ORDIN
Chief Assistant

Attorney General
(Counsel of Record)

RICHARD C. JACOBS
Special Counsel to the
Attorney General

N. GREGORY TAYLOR
Assistant Attorney General

DENNIS M. EAGAN
Deputy Attorney General
3580 Wilshire Blvd., Rm. 800
Los Angeles, CA 90010
Telephone: (213) 736-2352

(Continued on inside cover)

HAROLD M. BROWN
Attorney General of
the State of Alaska

MIKE GREELY
Attorney General of
the State of Montana

BRIAN McKay
Attorney General of
the State of Nevada

NicHeoias J. SPAETH
Attorney General of
the State of North Dakota

DAVE FROHNMAYER
Attorney General of
the State of Oregon

Davip L. WILKINSON
Attorney General of
the State of Utah

KENNETH O. EIKENBERRY
Attorney General of
the State of Washington

JEFF GOLTZ
Senior Assistant
Attorney General

A. G. MCCLINTOCK
Attorney General of
the State of Wyoming

TABLE OF CONTENTS

Page
a l
ee eee ee th va Reed wvaveyeee y's 3
ocean vees cE RE RRR RE 5

I. This Court Should Grant the Petition Because the
Lower Court Erroneously Decided an Issue That Is Not
CM Grek n a Shake as hokvesu Sens 5

II. In Concluding That Hawaii Had “Taken” Property by
Judicial Decision, the Lower Court Ignored Both the
Unsettled Nature of Hawaii Water Law and Supreme
Court Cases Holding That Courts, in Declaring What
the Law Is, Are Not Subject to “Taking” Claims.... 8

A. The Lower Court’s Premise That McBryde
Effected a “Major Change” in Hawaii Law Con-
flicts With the Hawaii Supreme Court’s Conclu-
sion that Prior Cases Were in Conflict and the Law
TN od x G5 oud nlc os bs i bo eae ae OOS 8

B. The Conclusion That Courts, in Declaring Law,
Can “Take” Property Conflicts With Supreme

Court Precedent Directly to the Contrary ....... 9

III. Assuming That Court Decisions Can “Take” Property,
No Such Taking Was Established Here ............ 12
Ee Pe eee oa sd so Fe sk ehh K ea RRA eee ae eS 17

ii

TABLE OF AUTHORITIES CITED

Cases
Page
Agins v. City of Tiburon (1980) 447 U.S. 255........ 6, 12, 13
Brinkerhoff-Faris Co. v. Hill (1930) 281 U.S. 673 ....... 9,10
California v. United States (1978) 438 U.S. 645......... 4
Central Land Co. v. Laidley (1895) 159 U.S. 103 ....... 9
Chevron Oil Co. v. Huson (1971) 404 U.S. 97 .......... 11
City of Berkeley v. Superior Court (1980) 26 Cal.3d 515,
Ge Seis Oe Fo SR bese Seisew ec eees a MB
Coiorado River Water Conservation District v. United States
ee CIE oo rcs coe deca eee cusawe ences ee 2,3
County of Oneida v. Oneida Indian Nation (1985)
US. SP eS BOE i eo alee wc cece ons 11
Davies Warehouse Co. v. Bowles (1944) 321 U.S. 144 ... 9
Demorest v. City Bank Co. (1944) 321 U.S. 36 ......... 9,15
peey v. Sempean (IGS) 3 Cal 2 .n kw. ccc ccwcesess 14
Energy Reserves Group, Inc. v. Kansas Power & Light Co.
Pe ee RP ES ols ee) crea ae when Cow aeeaees 13
Fox River Paper Co. v. Railroad Commission (1927) 274
0 th » » DAA ER ae Cp en iat ts tip dea PPG ae roe yi Sel SL 9
Garcia v. San Antonio Metropolitan Transit Authority
1. oo te ere 11
Gould v. Eaton (1897) 117 Cal. 539 .................... 14

Great Northern Ry. v. Sunburst Co. (1932) 287 U.S. 358 9
Home Building & Loan Assn. v. Blaisdell (1934) 290 U.S.

Pe ae ee ee gh en Reet meyer Le ean e ne 13
Hughes v. Washington (1967) 389 U.S. 290 ............ 3,8
Illinois Central Railroad v. Illinois (1892) 146 U.S. 387 ..2, 14
Kaiser Aetna v. United States (1979) 444 U.S. 164...... 13
Mason v. Hill (1833) 110 Eng.Rep. 692................ 3,14
McBryde Sugar Company, Limited v. Robinson (Haw.

Se A RE 6 Sak oh ahs 2 Oh ee eee passim

ili

TABLE OF AUTHORITIES CITED

CASES
Page

Muhlker v. New York & Harlem Railroad Co. (1S 5) 197

National Audubon Society v. Superior Court (1983) 33
Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709, cert. den.,
atcenscen WEN commana TU Gita EE ask oe dee fo oe

National League of Cities v. Usery (1976) 426 U.S. 833.. 11
Oregon ex rel. State Land Board v. Corvallis Sand & Gravel

Ca: CEP7T) GE SLE Ses. ls eens cueeens eee 9,11, 14
Penn Central Transp. Co. v. New York City (1978) 438
Ue SOs ov cuieees cous eewersemsceee eee 13, 15, 16

Pollard’s Lessee v. Hagan (1845) 44 U.S. (3 How.) 212.. 14

Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74
a: win 9:9 by ob cant oe aw: oe ee sat ee 13,14

Reppun v. Board of Water Supply (Haw. 1982) 656 P.2d57 7

Robinson v. Ariyoshi (Haw. 1982) 658 P.2d 287.
item ekvee deneaen ees taeeeleetae 2, 6, 8, 12, 14, 15, 16

Robinson v. Ariyoshi (9th Cir. 1985)

Tae Die POs 59S ch ebb echo toe eee 2, 8, 15
Ross v. Cee (IED) Zar UR. Se on sess covee oes 9
Ruckelshaus v. Monsanto Co. (1984) __. U.S. ____, 104

AA, FOS + 660 nonin OAS e SOR ee eee 12, 16
Simpson v. Union Oil Co. (1969) 396 U.S. 13 .......... 11
Tidal Oil Co. v. Flanagan (1924) 263 U.S. 444.......... 9,10

United Plainsmen v. North Dakota State Water
Conservation Comm’n (N.D. 1976) 247 N.W.2d 457...2, 14

United States v. Chandler-Dunbar Water Power Co. (1913)

BAe MIB FS one vs vs Sb5s a hon then Tee 15
United States v. Gerlach Live Stock Co. (1950) 339 U.S.

TEE on dene nau ds 00ch Owen ete eee 3,14
United States v. Willow River Power Co. (1945) 324 USS.

GID inn vnvcynotues cbaeuse eee 15

United States Trust Co. v. New Jersey (1977) 431 U.S. 1 13

iV

TABLE OF AUTHORITIES CITED

CASES
Page

Williamson County Regional Planning Comm’n v. Hamilton
Bank (1596S) ne UD. cccicy G0 Deer FIO elses 6, 12, 16

Wood v. Waud (1849 Ex.) 154 Eng.Rep. 1047, 1058..... 3, 14

United States Constitution

Aat. ©, 9 0 Divino eee eee 13
Fikth Ame occ cecnnceden seers 4,11, 13
Poussin Ame og 6 kc vas ocee decor takeeeen 4,13
Texts
1 Hutchins, Water Rights Laws in the Nineteen Western
Semees CISTEY Ge cn wad Ure eee a 3

1 Wiel, Water Rights in the Western States (3d ed. 1911)
a SY 5 Serre fare Cater, eed ra alte 14, 15

No. 85-406

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

GEORGE R. ARIYOSHI, Governor, STATE OF HAwaIl, et al.,
Petitioners,

V.

SELWYN A. RUBINSON, et 4i.,
Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF OF THE STATES OF ALASKA, CALIFORNIA,
MONTANA, NEVADA, NORTH DAKOTA, OREGON,
UTAH, WASHINGTON AND WYOMING
AS AMICI CURIAE
IN SUPPORT OF THE PETITION
FOR A WRIT OF CERTIORARI

INTEREST OF THE AMICI CURIAE
The amici States have a compelling interest in this case.

All of them have comprehensive water mghts systems that
attempt to accommodate the diverse and conflicting claims of
public agencies, private parties, and the people as a whole in this
vital public resource. The touchstone for the sovereign
stewardship over the distribution of water, as well as for the
judicial articulation of principles of state water law, is the
principle that this precious public resource should be put only to
reasonable and beneficial use. This is particularly true in the arid

2

and semi-arid States of the West, where the articulation of
principles of state water law is animated by the “critical
[problem] of scarcity of water’ (Colorado River Water
Conservation District v. United States (1976) 424 U.S. 800, 804).

It was this principle of reasonable and beneficial use that
underlay the decision of the Supreme Court of Hawaii here. It
viewed the arguments of the private parties as leading to the
conclusion that “there existed no apparent common law restraint
upon the right of private parties to drain rivers dry for whatever
purposes they saw fit.” (Robinson v. Ariyoshi (Haw. 1982) 658
P.2d 287, 311.) In rejecting these arguments, the Supreme Court
of Hawaii likened the State’s stewardship over the allocation of its
waters to the public trust held by the States in the oeds of
navigable waterways, thus recognizing a concept that has been set
forth in the water rights decisions of other States (e.g., United
Plainsmen vy. North Dakota State Water Conservation Comm'n
(N.D. 1976) 247 N.W.2d 457, 469-463; National Audubon
Scciety v. Superior Court (1983) 33 Cal.3d 419, 425, 437-438,
445, 447 [189 Cal.Rptr. 346, 658 P.2d 709], cert. den., __ US.
___., 104 S.Ct. 423). This Court has itself held that this public
trust is governmental in nature and cannot be alienated. (//linois
Central Railroad v. Illinois (1892) 146 U.S. 387, 452.)

The decision of the Court of Appeals for the Ninth Circuit,
however, nullified the decision of the Supreme Court of Hawaii,
concluding that its articulation of state water law constituted a
“taking” of “vested” property rights without just compensation.
(Robinson y. Ariyoshi (9th Cir. 1985) 753 F.2d 1468, 1474.)
This conclusion was based upon the Ninth Circuit’s own
independent interpretation on several matters of state law: the
import of prior Hawaii case law, the meaning of the decision of
the Supreme Court of Hawaii in the case under review, and the
manner in which that decision would be applied in future state
court cases. (See 753 F.2d at pp. 1473-1474.) These
interpretations of state law conflicted with those of the Supreme
Court of Hawaii on the very same questions.

The decisions of state courts defining sovereign rights in public
trust resources have been attacked with increasing frequency in
recent years based on the “taking” argument that proved

3

successful below. (E.g., National Audubon Society v. Superior
Court, supra, 33 Cal.3d 419, cert. den., __ U.S. , 104 S.Ct.
413 (water rights allocation must consider environmental impacts
on trust resources; see Pet. for Cert., heading III, U.S. 83-300);
City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162
Cal.Rptr. 327, 606 P.2d 362], cert. den., 449 U.S. 840 (public
trust interest impliedly reserved in deeds to lands beneath waters
of San Francisco Bay; see Pet. for Cert., heading 2, U.S. 79-
2008).)

These assertions have been based principally on what was the
sole authority offered by the Ninth Circuit here: a concurring
opinion by Justice Stewart in Hughes v. Washington (1967) 389
U.S. 290, 294, 296-297, which suggested that property owners
enjoy constitutional protection against “unpredictable” changes in
state court case law.

The Ninth Circuit’s decision will fundamentally alter the
ability of state supreme courts to define, as a matter of state law,
public and private rights in public trust resources. For that reason,
the amici States strongly support Hawaii’s petition and ask that
this Court accept the case and reverse the lower court’s decision.

INTRODUCTION

The sovereign governmental interest of the States in the
allocation of water is of particular importance to the arid and
semi-arid States of the West. (See Colorado River, supra, 424
U.S. at p. 804.) In constitutiora!l and statutory provisions, and by
court decisions, various western States F-ve recognized the
established common law concept that flowing water, like light and
air, is publici juris—the property of the public.' The reference is
not to an interest or title in the proprietary sense, but rather to a

' The concept has been recognized in the English cases (e.g., Wood v.
Waud (1849 Ex.) 154 Eng.Rep. 1047, 1058; Mason v. Hill (1833) 110
Eng.Rep. 692), as well as by this Court (United States v. Gerlach Live
Stock Co. (1950) 339 U.S. 725, 744-745 (tracing the concept to the
Institutes of Justinian)). Articulations of the concept in state
constitutions, statutes, and case law are collected in | Hutchins, Water
Rights Laws in the Nineteen Western States (1971) pp. 3-7.

a

4

State’s power, in a sovereign capacity as the representative of all
of its people, to assure that the common nights of all are
protected.”

As pointed out by the Supreme Court of Hawaii here, this
sovereign governmental interest is akin to the public trust held by
the States in the beds of navigable waterways, and cannot be
alienated.

In recognition of the strong sovereign interest of the States in
this area, the federal government has traditionally deferred to the
States in their development of separate water law regimes
designed to meet their own particular needs. (See, e.g., California
v. United States (1978) 438 U.S. 645, 653, 663.)

It is therefore particularly surprising that the lower court chose
this area of state property law in which to establish the doctrine
that state supreme courts, in declaring what state property law is,
are subject to having their decisions invalidated in this Court or in
the lower federal courts based on the allegation that their
declaration of state law has “taken”’ vested private property rights
in violation of the Fifth and Fourteenth Amendments.

What is equally disturbing, the lower court brushed aside well-
established principles of this Court concerning ripeness and
justiciability in its haste to reach and decide this issue of “judicial
taking”. The issue should never have been reached.

Rather than heed these principles, which counsei and require
judicial restraint, the lower court instead proceeded to
characterize, define, and limit the content of Hawaii’s water law.
It reached its own independent conclusions concerning the import
of prior state case law concerning Hawaiian water nghts, which
conclusions were directly at odds with the Supreme Court of
Hawaii’s own characterization of prior Hawaii law. It also reached
its own independent conclusions concerning the interpretation and
future application of the state supreme court’s opinion, again in
flat contradiction of the state court’s own interpretation of the
decision which it had rendered. Finally, it forestalled any future
development or case-by-case -application of the principles set

? See id., at p. 6.

; 5
forth in the state supreme court’s decision by declaring that the
decision was invalid as a “taking” of vested rights.

In response to past arguments that a particular decision would
cause economic dislocations because of past reliance on earlier
case law, state courts have applied recognized institutional rules
(for example, prospective overruling) to ease any perceived
departure from past precedent, or have expressly ieft resolution of
such problems to future litigation. (E.g., City of Berkeley v.
Superior Court, supra, 26 Cal.3d 515, 533-536 (decision only
partially retroactive); National Audubon Society v. Superior
Court, supra, 33 Cal.3d 419, 447-448, 452 (competing interests to
be resolved in subsequent phase of litigation).) Here, for the first
time, the invocation and application of such institutiona! rules has
been rendered superfiuous by the interposition of a constitutiona!
bar to “change” (as perceived by the federal courts) in state court
case law.

The stultifying and intrusive impact that the principle
announced below would have upon the evolutionary, case-by-case
development of a State’s common law is evident. The decision is
particularly disturbing to the amici States because it has been
applied in an area in which, historically and by definition, the
sovereign has retained the governmental right to insist that
water—a vital public resource—be put only to reasonable and
beneficial uses that are consistent with the interests of the public
as a whole.

For that reason, the amici urge that this Court grant the
petition and summarily reverse, or, in the alternative, set the case
for plenary consideration.

ARGUMENT

I. THIS COURT SHOULD GRANT THE PETITION BECAUSE
THE LOWER COURT ERRONEOUSLY DECIDED AN ISSUE
THAT IS NOT RIPE FOR DECISION

Even assuming that court decisions can “take” property, the
Ninth Circuit acted prematurely in reaching and deciding that
issue here.

6

This Court has held in recent cases that the question whether
state action has resulted in an unconstitutional “taking” of
property is not ripe for judicial consideration until the State has
actually imposed specific, concrete limitations on the property
interest. (E.g., Williamson County Regional Planning Comm'n v.
Hamilton Bank (1985) __ U.S. __, 105 S.Ct. 3108, 3117-3121;
Agins v. City of Tiburon (1980) 447 U.S. 255, 262-263.)

Here, the general principles of Hawaiian water law set forth in
McBryde Sugar Company, Limited v. Robinson (Haw. 1973) 504
P.2d 1330, have yet to be applied to a specific situation. The
Supreme Court of Hawaii, in answering the questions posed by
the Ninth Circuit, declared that the McBryde decision does not, in
itself, result in a limitation upon any specific landowner’s water
rights, and that any such limitations will only be considered in
future proceedings, in which traditional equitable principles will
be applied, along with the “public use” doctrine, to determine
whether a particular diversion is permissible. (See Robinson v.
Ariyoshi, supra, 658 P.2d 287, 294-295.)°

>In the answers to the certified questions, the Supreme Court of
Hawaii stated that:

“[Wle did not [in McBryde] actually enjoin or explicitly
prohibit the diversion of water from the watershed. Rather, we
sought only to establish that these private usufructory interests were
not so broad as to include any inherent enforceable right to transmit
water beyond the lands to which such private interests appertained

“We did not say that such transfers are prohibited as a matter of
law, for McBryde cid not discuss and therefore cannot be
understood to be conclusive of the circumstances under which a
private party or the State could obtain injunctive relief against
unsanctioned transfers. And, even in circumstances where some
relief would be appropriate, the issuance of any injunction would of
course be subject to all of the considerations that serve to limit
equitable relief. These limiting doctrines include estoppel, laches,
and most particularly with respect to wrongful diversion of water,
the public use doctrine as applied to our unique situation. See,
Reppun v. Board of Water Supply, 656 P.2d 57 (Haw. 1982)
[holding that the public use doctrine may validate an otherwise
wrongful diversion ].

Therefore, McBryde does not actually limit any landowner’s
existing water right. Such limitations will only be imposed, if at
all, in future proceedings, as the general water law principles
established in McBryde are measured against each landowner’s
equitable interest and the public use doctrine.

The ripeness doctrine applies with particular force here because
even the general principles announced in McBryde are subject to
further definition and refinement in the context of their future
application to particular sets of facts. (See, e.g., Reppun v. Board
of Water Supply (Haw. 1982) 656 P.2d 57, 59, 72 (limiting broad
language in McBryde concerning the nature of riparian rights, and
noting that the doctrine will continue to evolve).)

In light of the decisions of this Court, which require that a
challenged regulation must be applied to a specific factual
situation before a taking claim can properly be assessed, the lower
court should never have reached the question whether the
decision in McBryde constituted a “taking” of vested rights. The
error being clear, the decision below should be summarily
reversed on this ground alone, quite apart from the merits of the
question whether court decisions can “take” property.

“Thus we take issue with the federal district court’s
characterization of McBryde as ‘restraining the free diversion of
surface waters for use outside the lands of the plaintiffs to which
they are appurtenant.’ [Citation omitted.] McBryde merely
established that there was no right on the part of the plaintiffs to
benefit from such diversions. But, as was the case in our pre-
existing law governing the transport of water, [footnote omitted]
diversions will be restrained only after a careful assessment of the
interests and circumstances involved indicates a need for restraint.
A delineation of these interests and circumstances were not before
us in McBryde and we did not order the cessation of any diversions.
Consistently with our statutory prerogative, we merely defined the
appropriate scope of the rights established in the case and left the
actual enforcement of these limitations to appropriate subsequent
actions brought by the parties, including the State.” (Emphasis in
the original.) (658 P.2d 287, 294-295.)

8

Hl. IN CONCLUDING THAT HAWAII HAD “TAKEN”
PROPERTY BY JUDICIAL DECISION, THE LOWER
COURT IGNORED BOTH THE UNSETTLED NATURE OF
HAWAII WATER LAW AND SUPREME COURT CASES
HOLDING THAT COURTS, IN DECLARING WHAT THE
LAW IS, ARE NOT SUBJECT TO “TAKING” CLAIMS

Putting aside the infirmities of the lower court decision on
ripeness grounds, its determination that the Supreme Court of
Hawaii committed a “judicial taking” is supported neither by the
facts nor by the decisions of this Court, which establish that
courts are not subject to “taking” claims in the exercise of their
law-declaring function.

A. The Lower Court’s Premise That McBryde Effected a
“Major Change” in Hawaii Law Conflicts With the Hawaii
Supreme Court’s Conclusion That Prior Cases Were in
Conflict and the Law Unsettled

The premise for the lower court’s legal conclusion that
McBryde constituted a “judicial taking” is its determination, after
its own independent review of state case law, that McBryde
effected a “major change” in state water law. (753 F.2d 1468,
1471.) In making this determination, the Ninth Circuit
completely ignored the state supreme court’s contrary conclusion
on that very question, which the court of appeals had expressly
requested. (See Robinson v. Ariyoshi, supra, 658 P.2d 287, 294,
306-309.)

In an exhaustive review of prior case law, the Supreme Court of
Hawaii concluded that the cases were in conflict, that the law was
unsettled, that confusion existed concerning the issues of water
law presented for decision, and that a decision harmonizing the
conflicting precedents was necessary. (/bid.) The state court
pointed out that the briefs of the parties themselves reflected this
conflict and uncertainty. (/d., at p. 309.) In such circumstances,
there was no basis for concluding, in the words of Justice
Stewart’s concurring opinion in Hughes (389 U.S. 290, 296-297),
that there had been an “unpredictable” change in state water law.
Precisely because prior iaw was unsettled, concerned parties, prior
to McBryde, could not comfortably predict what the Hawaii
Supreme Court’s determination would be concerning these issues.

9

Here, too, the lower court had no occasion to reach the issue
that it decided. The predicate for such a decision—a “major
change” in state water ilaw—was absent. Thus, even assuming
that judicial declarations of state property law can “take”
property, and further assuming that the standard for whether such
a taking has occurred is simply the predictability of the result, no
such taking was established here.

B. The Conclusion That Courts, in Declaring Law, Can
“Take” Property Conflicts With Supreme Court Precedent
Directly to the Contrary

Under our federal system, the definition of “property” depends
on state law. (Oregon ex rel. State Land Board v. Corvallis Sand
& Gravel Co. (1977) 429 U.S. 363, 378; Davies Warehouse Co. v.
Bowles (1944) 321 U.S. 144, 155.) And state courts, no less in
the area of property law than in other areas of state law, have the
discretion to overrule past decisions in order to correct perceived
error.

The argument that a court decision overruling a prior precedent
regarding state property law constitutes a prohibited taking of
property has been repeatedly rejected by this Court. (Tidal Oil
Co. v. Flanagan (1924) 263 U.S. 444, 450; Central Land Co. v.
Laidley (1895) 159 U.S. 103, 112; see Brinkerhoff-Faris Co. v.
Hill (1930) 281 U.S. 673, 680, 681, fn. 8; Great Northern Ry. v.
Sunburst Co. (1932) 287 U.S. 358, 365; but cf. Muhlker v. New
York & Harlem Railroad Co. (1905) 197 U.S. 544; Demorest v.
City Bank Co. (1944) 321 U.S. 36; Fox River Paper Co. v.
Railroad Commission (1927) 274 U.S. 271.)4

* Muhlker can be read as saying that courts are sometimes sut oct to
constitutional inhibitions in reconsidering earlier cases upon which
parties may have relied to their detriment. The case has not been so
construed by this Court, however. The Court has treated Muhlker as
solely a Contract Clause case. (Tidal Oil Co. v. Flanagan, s«pra, 263
U.S. 444, 452-453 (state court judgment alone, without a statute, cannot
impair contract); Ross v. Oregon (1913) 227 U.S. 150, 163-164.)

Demorest and Fox River involved challenges to state legis!ative
enactments that were alleged to constitute takings of property. Aithough
rejecting the challenge in both instances, this Court stated that a state

10

In Tidal Oil, supra, a case where a deed apparently valid when
executed had later been held invalid in light of a reinterpretation
of applicable law, this Court stated:

“The parties to this action have been fully heard in the state
court in the regular course of judicial proceedings and in
such a case the mere fact that the state court reversed a
former decision to the prejudice of one party does not take
away his property without due process of law. This was
expressly held in the case of Central Land Co. v. Laidley, 159
U.S. 103, 112.” (263 U.S. at p. 450.)

This result was confirmed in Brinkerhoff-Faris, supra, a case in
which Justice Brandeis explained the underlying rationale as
follows:

“The process of trial and error, of change of decision in
order to conform with changing ideas and conditions, is
traditional with courts administering the common law. Since
it is for the state courts to interpret and declare the law of the
State, it is for them to correct their errors and declare what
the law has been as well as what it is. State courts, like this
Court, may ordinarily overrule their own decisions without
offending constitutional guaranties, even though parties may
have acted to their prejudice on the faith of the earlier
decisions.” (281 U.S. at p. 681, fn. 8.)

This distinction between the courts and the other branches of
government for purposes of taking liability is well-grounded in the
inherent nature of what courts do and what gives legitimacy to
their workproduct.

The courts do not function as an instrument of the popular will,
nor as the agent of any particular segment of society,
governmental or private. Rather, their function is to act as neutral

court determination of the related subsidiary issue of what the claimant’s
property rights were under state law could not be used as a means of
evading federal jurisdiction over the claim that a state statute had taken
property. The Court stated that it would, in determining whether such
an evasion had been attempted, assess whether the state court’s
determination of state property law had a “fair or substantial basis”.

11

arbiters of the disputes that are placed before them in the form of
particular cases. Their decisions may redound to the benefit or
detriment of the other branches of government, or indeed may
have no effect on government at all; and this is a generalization
that holds true in cases involving the articulation of property law
principles: an alleged “change” in such principles may “hurt” or
“help” government, or may have no effect upon it at all. There is
thus no essential identity of interest between the courts and other
branches of the state or federal governments.

Nor does the nature of a court’s function confer upon it a free-
ranging charter to implement its concept of what the law should
be, in contradistinction to the role of a legislature. The Supreme
Court of Hawaii here, for instance, although it thought that the
“taro cultivation” test for allocation of water rights was a “quaint”
and perhaps inappropriate modern-day test for conferral of such
rights, nonetheless recognized that such a standard was
indisputably part of the law of Hawaii, and that any change would
be solely for the legislature to make. (McBryde, supra, 504 P.2d
1330, 1340, fn. 15.)

It is of course true that courts, including this Court,
occasionally make decisions that arguably will cause
unanticipated and adverse economic consequences among persons
who may have relied on an earlier contrary precedent. (See, e.g.,
Garcia v. San Antonio Metropolitan Transit Authority (1985)
__. U.S. __, 105 S.Ct. 1005, overruling National League of
Cities v. Usery (1976) 426 U.S. 833; cf. County of Oneida v.
Oneida Indian Nation (1985) __. U.S. __, 105 S.Ct. 1245, 1272
(voiding 1795 deed from Indian tribe, thereby “upset[ting] long-
settled expectations”).) But this truism does not render either
this Court or other courts subject to taking claims under the Fifth
Amendment.

The courts, both state and federal, have developed their own
institutional rules for easing any such perceived hardships. (See,
e.g., Oregon ex rel. State Land Board v. Corvallis Sand & Gravel
Co,, supra, 429 U.S. 363, 381-382 (overruling case in property
law area decided several years earlier); Chevron Oil Co. v. Huson
(1971) 404 U.S. 97, 105-109 (prospective overruling); Simpson
v. Union Oil Co. (1969) 396 U.S. 13 (denying request for

12

prospective overruling); City of Berkeley v. Superior Court, supra,
26 Cal.3d 515, 533-536 (overruling prior case that had held that
deeds to lands beneath San Francisco Bay conferred absolute
title; contrary conclusion that public trust interest impliedly
retained applied by court only to lands still wet, where reliance
had been minimal).) Indeed, in this very case, the Supreme
Court of Hawaii mentioned possible future application of
estoppel, laches, and the public use doctrine as mitigating
principles that could blunt or avoid any adverse economic impacts
of its decision. (Robinson v. Ariyoshi, supra, 658 P.2d 287, 294-
295.)

The lower court’s decision would render superfluous such
devices for softening the impact of any alleged departure from
past precedent. Its decision absolutely forbids a court, as a matter
of constitutional law, from departing from past precedent if to do
so would injure “vested” nghts.

Ill. ASSUMING THAT COURT DECISIONS CAN “TAKE”
PROPERTY, NO SUCH TAKING WAS ESTABLISHED
HERE

Even assuming, contrary to the above arguments, that the
Ninth Circuit properly reached the issue, and further, that state
court declarations of common law in the area of water rights are
subject to “taking” claims, no taking was established here. If
there is to be Taking Clause review in this area, a balancing test
should be applied, by analogy to this Court’s decisions involving
state regulations that restrict the use of private property. No such
balancing test was applied by the Ninth Circuit here. Nor could
such a test have been applied, given the unanswered questions
that exist concerning concrete application of the general
principles set forth in McBryde.

In dealing with alleged regulatory takings, this Court has
adopted a balancing test—under which public needs are weighed
against private interests and expectations—in determining
whether state regulation of property rights constitutes an
unconstitutional “taking” of such rights. (See, e.g., Williamson
County Regional Planning Comm'n v. Hamilton Bank (1985)
— US. —_, 105 S.Ct. 3108; Ruckelshaus v. Monsanto Co.
(1984) __ U.S. __, 104 S.Ct. 2862; Agins v. City of Tiburon

13

(1980) 447 U.S. 255; Kaiser Aetna v. United States (1979) 444
U.S. 164; Penn Central Transp. Co. v. New York City (i978) 438
U.S. 104.) .

In Penn Central, the Court stated that, “quite simply, [the
Court] has been unable to develop any ‘set formula’ for
determining when ‘justice and fairness’ require that economic
injuries caused by public action be compensated by the
government rather than remain disproportionately concentrated in
a few persons.” (438 U.S. at p. 124.) Generally, the Court stated,
it must consider the “economic impact of the regulation” on the
property owner, particularly the extent to which the regulation
“has interfered with distinct investment-backed expectations,”
and must balance these factors against the “character of the
governmental action.” (/bid.) An unconstitutional taking is more
likely to be found, the Court stated, where the state action
constitutes a “physical invasion” of the property interest than
where the interference arises from a “public program adjusting
the benefits and burdens of economic life to promote the common
good.” (Ibid.)°

In Pruneyard Shopping Center v. Robins (1980) 447 US. 74,
for instance, this Court applied the balancing test in reviewing a
state constitutional! provision that had been interpreted by the
state supreme court to entitle citizens to exercise free expression
and petition nghts on shopping center property. The question was
whether the state constitutional provision effected a “taking” of
the shopping center owner’s property rights in violation of the
Fifth and Fourteenth Amendments. (/d., at pp. 76-77, 82.) This
Court applied the balancing test and affirmed, concluding that
“there is nothing to suggest that preventing the appellaits from

* A similar balancing test has been applied in determining whether
state legislative action unreasonably impairs contracts in violation of the
Contract Clause of the Constitution. (See U.S. Const., art. I, §10, cl. 1;
Home Building & Loan Assn. v. Blaisdell (1934) 290 U.S. 398; United
States Trust Co. v. New Jersey (1977) 431 U.S. 1; Energy Reserves
Group, Inc. v. Kansas Power & Light Co. (1983) 459 U.S. 400, 410-
413.)

14

prohibiting this sort of activity will unreasonably impair the value
or use of their property as a shopping center.” (/d., at p. 83.)

If any such balancing test were to be applied to state judicial
decisions that give content to local water law, presumptive weight
would have to be accorded the sovereign state interest is assuring
that water allocation decisions comport with the interests of the
people as a whole.

This Court has held that the States, as an attribute of
sovereignty, reserve the right to exercise sovereign ownership and
control over their navigable waters and underlying beds. (See,
e.g., Pollard’s Lessee v. Hagan (1845) 44 U.S. (3 How.) 212,
224-229; Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., supra, 429 U.S. 363, 370-376.) Further, the common
law of the various States, following the English common law, has
generally recognized that flowing water, like light and air, is
publici juris, that is, it is owned by the whole community and thus
cannot be privately owned. (See, e.g., United States v. Gerlach
Live Stock Co. (1950) 339 U.S. 725, 744-745; Eddy v. Simpson
(1893) 3 Cal. 249, 252; Gould v. Eaton (1897) 117 Cal. 539;
Mason y. Hill (1833) 110 Eng.Rep. 692; Wood v. Waud (1849
Ex.) 154 Eng.Rep. 1047, 1058; 1 Wiel, Water Rights in the
Western States (3d ed. 1911) pp. 13-21 (hereinafter “Wiel’’).)
Under this principle of common ownership, the States are
deemed to hold navigable waters and the lands beneath them in
trust for certain public uses, principally navigation, commerce,
fisheries, and the preservation of recreational and environmental
values. ([/linois Central Railroad v. Illinois, supra, 146 U.S. 387;
National Audubon Society v. Superior Court, supra, 33 Cal.3d
419, 435-437.) Regarding the waters themselves, this public trust
responsibility is not limited to navigable waterways. (See United
Plainsmen v. North Dakota State Water Conservation Comm'n,
supra, 247 N.W.2d 457, 460-463; National Audubon Society,
supra, 33 Cal.3d at pp. 425-426, 434, 437, 441; Robinson v.
Ariyoshi, supra, 658 P.2d 287, 310.)

Thus, the States possess a sovereign governmental interest in
their waters that is different from and greater than their
regulatory powers over ordinary species of property. Since the
States retain a sovereign interest in water, a landowner acquires a

15

different interest in water than in the appurtenant lands. (See,
e.g., Wiel, at pp. 13-21.) A landowner’s water rights are
usufructuary rather than possessory, in that he does not own the
water but merely has a limited night to its use. (/bid.)

Accordingly, the balance between state and private interests in
water rights cases is markedly different than the balance in land
use cases. Because the State retains a sovereign interest in water
for public purposes, the state interest is qualitatively higher in
water nights cases; and since the landowner lacks a fee interest,
his reasonable expectations of non-interference are qualitatively
different.° Therefore, any balancing of state and private interests
in water rights cases would have to be presumptively struck in
favor of the sovereign powers of the State.

The Ninth Circuit of course made no effort whatsoever to
balance the competing interests of the State and the private
parties. It held that any interference with “vested” rights is
unconstitutional. For instance, although the decision mentions
private expenditures made in contemplation of a continued right
to divert waters to other watersheds (753 F.2d 1468, 1473)
(impliedly assuming that suca diversions will be prevented by the
future application of McBryde), there is absolutely no mention of
the public’s interest in reasonable and beneficial use of the State’s
waters.

In contrast, the Supreme Court of Hawaii was acutely
conscious of the implications of the arguments being advanced by
the private parties. The import of these arguments, it said, was
that “there existed no apparent common law restraint upon the
right of private parties to drain rivers dry for whatever purposes
they saw fit.” (Robinson v. Ariyoshi, supra, 658 P.2d 287, 311.)

° For cases bearing on the interrelationship between alleged regulatory
takings and a property owner’s “reasonable expectations” concerning his
property, see Penn Central Transp. Co., supra, 438 U.S. at pp. 124-125,
and the cases there cited: United States v. Willow River Power Co.
(1945) 324 U.S. 499; United States v. Chandler-Dunbar Water Power
Co. (1913) 229 U.S. 53; Demorest v. City Bank Co. (1944) 321 U.S. 36;
and Muhlker v. New York & Harlem Railroad Co. (1905) 197 U.S. 544.

16

In rejecting the interpretation of prior case law proffered by the
private parties, the state court concluded:

“Such a system may have been deemed both appropriate and
beneficial in other historical contexts. But this is no longer
the case. The reassertion of dormant public interests in the
diversion and application of Hawaii’s waters has become
essential with the increasing scarcity of the resource and
recognition of the public's interests in the utilization and flow
of those waters [footnote omitted]. (Emphasis added.)
(bid.)

Concerning the other two aspects of the balancing approach
used in the regulatory taking cases, the economic impact on the
private party and the extent to which distinct investment-backed
expectations have been interfered with, the lower court could not
have considered these elements even had it attempted a balancing
test. The balancing process of the regulatory taking cases involves
no set formula and each case involves an essentially ad hoc
inquiry, with the determination of whether a taking has occurred
depending upon the particular circumstances of each case.
(Ruckelshaus v. Monsantu Co., supra, 104 S.Ct. 2862, 2874-
2875; Penn Central Transp. Co. v. New York City, supra, 438
U.S. 104, 124.) As stated in Williamson County Regional
Planning Comm'n v. Hamilton Bank, supra, 105 S.Ct. 3108,
3119:

“[{ The three factors] simply cannot be evaluated until the
administrative agency has arrived at a final, definitive
position regarding how it will apply the regulations at issue to
the particular land in question.”

As discussed under heading I above, the general principles set
forth in McBryde Sugar Company, Limited v. Robinson have yet
to be applied to individual landowners. Only then, when those
principles are measured against the equities and evaluated for the
possible exceptions to their application provided by the public use
doctrine of Hawaii water law, will the balance between state and
private interests be determined. I[t is not inconceivable that
Hawaii courts may hold in future cases that a landowner’s
equitable interests or the public use doctrine will permit only a

17

modest adjustment of his past practices, or none at all. The
question whether the landowners’ rights have _ been
unconstitutionally taken is thus not just: able at this time. The
Hawaii courts should have been allowed to determine the rights of
individual landowners in subsequent proceedings.

CONCLUSION

The lower court disregarded established principles concerning
justiciability to reach and decide the “taking” issue. Its decision
conflicts with this Court’s cases and gravely impairs the ability of
the state courts to shape local law regarding a resource of vital
importance to their citizens—water.

This Court should grant the petition and summarily reverse.
Alternatively, the case should be set for plenary consideration.

November 1985

JOHN K. VAN DE Kamp
Attorney General of
the State of California
ANDREA SHERIDAN ORDIN
Chief Assistant

Attorney General
(Counsel of Record)

RICHARD C. JACOBS
Special Counsel to the
Attorney General

N. GREGORY TAYLOR
Assistant Attorney General

DENNIS M. EAGAN
Deputy Attorney General
3580 Wilshire Bivd., Rm. 800
Los Angeles, CA 90010
Telephone: (213) 736-2352

HAROLD M. BROWN
A.torney General of
the State of Alaska

MIKE GREELY
Attorney Geueral of
the State of Montana

Respectfully submitted,

BRIAN McKay
Attorney General of
the State of Nevada

NICHOLAS J. SPAETH
Attorney General of
the State of North Dakota

DAVE FROHNMAYER
Attorney General of
the State of Oregon

Davip L. WILKINSON
Attorney General of
the State of Utah

KENNETH O. EIKENBERRY
Attorney General of
the State of Washington

Jerr GOLTz
Senior Assistant
Attorney General

A. G. McCLINTOCK
Attorney General of
the State of Wyoming

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0260%3A06. Public record. Not legal advice.