Supplemental Brief — Ariyoshi v. Robinson

IN THE | JUN 11 wag §

SUPREME COURT OF THE UNITED ee ccm a

Cs

OCTOBER TERM, 1985

GEORGE R. ARIYOSHI, GOVERNOR, :

STATE OF HAWAII, et al., a

Petiticners,

VSe

SELWYN A. ROBINSON, et al.,

Respondents.

SUPPLEMENTAL BRIEF OF RESPONDENTS ROBINSON ,

IN OPPOSITION TO PETITION FOR et

A WRIT OF CERTIORARI

ALEXANDER C. MARRACK ‘.

Counsel of Record 4

HODDICK, REINWALD, O'CONNOR & 2

MARRACK 4

2400 PRI Tower ix

733 Bishop Street

Honolulu, Hawaii 96813

(808) 524-8350

Counsel for Respondents a

Robinson

NO. 85-406

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

GEORGE R. ARIYOSHI, GOVERNOR,

STATE OF HAWAII, et al.,

Petitioners,

VSe

SELWYN A. ROBINSON, et al.,

Respondents.

SUPPLEMENTAL BRIEF OF RESPONDENTS ROBINSON

IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

ALEXANDER C. MARRACK

Counsel of Record

HODDICK, REINWALD, O'CONNOR &

MARRACK

2400 PRI Tower

733 Bishop Street

Honolulu, Hawaii 96813

(808) 524-8350

Counsel for Respondents

Robinson

TABLE OF CONTENTS

ABLE OF CONTENTS eeeeneee#esee*es#e#*e##se#ee*eeeerekee#ees”*#e. i

Y

ABLE OF AUTHORITIES cecccccceccsescccece ii

e The Requirements of Williamson

County Have Been Satisfied As To

Finality *eee#seseess#sess#seeseesees+e#*ee#e#sxs+e3see#e#*ee#ee#e#es¢ 3

MI. The Answers toCertified Questions In

; This Case Do Not Change The Judgment

3 In McBryde From A Final To Inter-

a locutory Judgment .cccccccccccccces 9

PIII. The Fifth Circuit Court Is Not A

3 Water Regulating Agency eeeeveeeeee8 12

PIV. There Is No Procedure To Obtain

. Compensation For Taking Of Plaintiffs'

Vested Water Rights eee*@*esesesesseeseteeskbrsee 13

° The Robinsons Had Vested Rights In

The Normal Surplus Water Of The

Hanapepe River .ccccccccecscccccceccs 14

I. The Judgment In Territory v. Gay Was

A Federal Judgment And Its Validity

And Res Judicata Effect Is A Federal

Question Ripe For Adjudication .... 17

=» CONCLUSION eeeeoee*ee2see7nee83nseeneeeteseeeenstseeneneeeee#e?#s: 20

TABLE OF AUTHORITIES

ICASES Page

Williamson County Regional Planning

ommission v. Hamilton Bank, No. 84-4

June aie 1985) @eeeeee2swe#weseertees@*ee72eeee#s#8e8ee passim

"McBryde Sugar Co. v. Robinson, 54

Hawaii 174, 504 P.2a 1330 (1973),

™ reh'g. denied. 55 Hawaii 260, 517

We P.2d 26, appeals dismissed and cert.

denied, 417 U.S. 962, 976 ...22252222- pPassim

@ Territory v. Gay, 31 Hawaii 376 (1930)

paff'd, 52 F.2d 356 (9th Cir.), cert.

a peomeeme, 266 0.8. G27. tissi). <evnes seve passim

4 | Steelman Ws All Continent Co., 301

ae Bete 278 (1937) @eeeee*e¢é54sL:+:»soesee@eeeeseeesee#e#ees#s:eees @ 19

) Dugas v. American Surety Co., 300 U.S.

SE CIEE “fo veuc ces teercrs deuevascks 19

® Local L@an Co. v. Hunt, 292 U.S. 234

ye

J (1934) ceeeoeeneseeeeeeseeeeeeeeeeseeeee eee 19

Rerodet General Corp. v. Askew, 51l F.2d

0 th Cir. 1975), appeal dismissed,

© cert. denied 423 U.S. 90 (1975) ceceee 20

-ii-

Respondents Robinson beg leave to

ile this supplemental brief in reply to the

olicitor General's brief. Unfortunately,

he Solicitor General relies on the opinion

pf the Supreme Court of Hawaii in its Answers

fe) Certified Questions. Pet. App. Ilda.

herefore the brief suffers from a basic

misunderstanding of the record and nature of

the proceedings’ below. It is the Solicitor

General's position that the case should be

remanded to the Court of Appeals for further

onsideration in light of this court's

Dpinion in Williamson County Regional

Planning Commission v. Hamilton Bank, No. 84-

(June 27, 1985).

Williamson County is a case which

mealt with the issue of when zoning and

lanning requirements become final and are so

Dnerous that an unconstitutional taking of

mroperty without due process occurrs. It

eld that the landowner had not obtained a

Beinal decision regarding the application of

Ehe zoning Ordinance and regulations to its

DP property because it had not applied fora

Variance. Furthermore, it had not utilized

Behe State procedures provided for obtaining

Meompensation for a taking. Therefore, the

|landowner's taking claim was not ripe for

Pconsideration by the federal courts.

The Solicitor General strains to

Ppush the case at bar into the Williamson

= ount mold by extracting statements’ from

answers to certified questions by the Supreme

Pcourt of Hawaii. That opinion was written by

» Chief Justice Richardson who was so aggrieved

by the decision of the United States District

Court that he appeared as amicus in the Ninth

Circuit Court of Appeals urging reversal.

Although in effect a party to the case, the

Chief Justice refused to recuse himself and

authored the opinion which was issued the day

efore he retired. Pet. App. l4a, 66 Haw.

isting of Justices.

i The Requirements Of Williamson County

MeeBave Been Satisfied As To Finality.

Contrary to the position of the

Solicitor General, there are no on-going

proceedings contemplated or required in

cBryde. That suit was in the nature of a

huiet title or declaratory judgment action to

Guantify water rights in the Hanapepe River.

The law as to how those rights were

Bdetermined was clearly established and were

© be decided "in conformity with vested

ights". HRS Sec. 664-32 The Robinsons had

already been determined to own normal surplus

ater of the Hanapepe River in Territory v.

ay, 31 Hawaii 376 (1930) aff'd, 52 F.2d 356

“9th Civic, cert. denied, 284 U.S. 677

(1931). The decree of the Court of the

Appeals for the Ninth Circuit affirming the

Supreme Court. of the Territory of Hawaii

ested the ownership of the normal surplus

and the right to continue to divert

water in the Robinsons. The district

found that this ownership was

cognized by the State in McBryde:

"The ownership of the normal surplus

water of the Koula Stream which flows

into the river was admitted in the

proceedings in McBryde to be the

property of G&R and at no time did the

State or any other party deny or dispute

G&éR's right to take the normal surplus

water so owned out of the River and to

transport the same to Makaweli.'' Finding

of Fact No. 3 Pet. App. 75a-76a.

"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, (3) McBryde's claim by

adverse possession against G&R 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, McBryde and plaintiffs to

a division of the storm and freshet

surplus." Finding of Fact 7 Pet. App.

77a.

After a trial of three anda half

mnths in 1965, the trial court entered its

Becision based on the ownership of lands in

he Hanapepe Valley which were entitled to

later to grow taro at the time of the Mahele

1848. The quantification of water rights

Mas important to McBryde, Gay & Robinson and

its lessee Olokele because the water is

peded to irrigate sugar land outside the

Banapepe watershed. The Court made the

following award of.appurtenant water.

1. To McBryde Sugar Company,

mited 4,915,400 gallons of water per day.

2. To the State of Hawaii,

p 167,650 gallons of water per day.

Se To Gay & Robinson, 1,533,050

llons of water per day.

4. To other landowners, a total

gregating 1,456,950 gallons per day.

In addition to appurtenant rights,

aintiff McBryde Sugar Company, Limited was

farded prescriptive water rights out of Gay

Robinson's surplus in the amount of

D84,600 gallons of water per day giving it

bright to take a total of 7,000,000 gallons

day from the Hanapepe River. Said

BBescriptive rights were awardec on the

HReory that for a continuous’ period of 10

ve, Gay & Robinson, the owner of the

Ormal surplus water, had allowed McBryde to

Beke at least that much water out of the

eer until creating an improved water system

1949, Gay & Robinson was awarded the

femaining surplus water including storm and

freshet surplus. Obviously, at that point,

t e judgment of the trial court was final.

lach party knew exactly how much water it was

ntitled to receive from the Hanapepe River.

The Supreme Court of Hawaii

Broceeded to affirm the award of appurtenant

bter rights but reversed the trial judge

fith respect to surplus water and

e@rescriptive rights. The State not Gay and

obinson owned all surplus water. It

ODncluded with this language:

b d

"Neither McBryde nor Gay & Robinson have

any right to divert water from Koula

1

ON

1

Stream and Hanapepe River out of

Hanapepe Valley into other watersheds.

Pet. App. 18a.

ere was no. remand and there obviously was

need for any.

The state owned all water in the

WMenapepe River subject to the right of

Pppurtenant and riparian owners’ to use the

a

feawater in the Valley but the owners were not

tc transport water out of the watershed. Of

Dine Gay & Robinson, Olokele and McBryde

a no use for water except to irrigate their

bgar fields outside the watershed. Olokele

ad not participated at trial because its

ter came from Gay & Robinson's’) ditch

prsuant to its lease. The judgment was

inal, the rights of all parties had been

Iclared and there were no further

oceedings contemplated.

The issue of finality for res

mecicata purposes was raised at the argument

1979 before the Court of Appeals and the

sue was briefed. The state officials

gued that the McBryde judgment was final

[md the Court of Appeals should not "consider

he instant proceedings to be premature."

Mbinson Brief App. 12.

és

E The Solicitor General recognizes

J ehat McBryde appeared final in 1973. The

4 Mistrict Court, the Court of Appeals and the

Ipecties to this litigation all agreed to the

Deadicy of McBryde. The final judgment in

Bryde in 1973 did not cease being final in

982, when there had been no- further

Broceedings in the case over that pericd of

ime.

Obviously, if the Solicitor General

pre correct, there would never be a final

| dgment adjudicating water rights in

awaii. This view is contrary to the

tatutory direction that water rights are to

determined "in conformity with vested

ights." HRS Sec. 664-34. It is

conceivable that an adjudication final on

s face, the effect of which has been

tigated in federal court for nine years

™epuld become a mere interlocutory expression

, Opinion, albeit an expression of opinion

Anding on all other courts in the State of

ed

Hawaii.

II

a The Answers To Certified Questions In

Mhis Case Do Not Change The Judgment In

SMcBryde From A Final To _ Interlocutory

maudgment.

The Court of Appeais certified six

vestions to the Supreme Court of Hawaii.

“Mone of the questions asked specifically

Ihether further proceedings were contemplated

the McBryde case itself.

The answer to the first question

fas that McBryde did not enjoin or explicitly

ohibit the diversion of water from the

atershed. Pet. App. 18a-2la. Apparently,

e entire opinion in McBryde was dicta,

Ithough dicta binding on all the courts of

waii under the doctine of stare decisis.

Secondly, the State of Hawaii could

“het claim collateral estoppel or bar and

Werser from McBryde if the State brought an

[tion either to quiet title to the water of

he Hanapepe or to enjoin the diversion of

@ter from the Hanapepe because there was no

nal judgment, only binding dicta on these

sues. Pet. App. 2la-25a. dowever, the

Mourt did hold that the McBryde judgment was

Peinal in part:

"On appeal this Court affirmed in part

the award of appurtenant water rights

and reversed the trial court's award of

prescriptive and surplus waters. We

also confirmed the existence of riparian

rights, delineated limitations on the

right to transport appurtenant and

riparian waters, and found that the

State was the owner of surplus water.

But no specific instruction was imparted

to the trial court, and this Court did

not utilize its power to render a final

judgment. Our judgment appeal only

provided that the trial court's judgment

was “affirmed in part; reversed in

part'." Pet. App. 23a-24a.

There was no remand and there was

> SELES DEEL EN ee hee ee an BEN IN 1 OLR LEFTY TLS «18 RE ANNEMARIE ae est

x Bae ass Oats a “ , aCe ED ie yee ie Fe ton” Cie aT

f 7 oe ee ye s Bakes

% a isn 2 ii pe pth ab . ph cs ees ad) he

thing left in the Supreme Court's or

rties' view to try in the trial court. The

ate owned the surplus water. No party was

wtih.

f terested in further litigation with regard

its riparian right to have the water

4 oceed in its natural state down the

7

|

Bnapepe River to the ocean.

io 3 i

The answer to the third question

Pe@hows the finality of McBryde.

"Question 3. Do the rulings in McBryde

with respect to water ownership and

water diversion have binding

precedential effect on the Hawaii state

courts?" Pet. App. 25a

Ihe Court's answer was:

j

"In sum, we answer question 3

affirmatively. The rulings in McBryde

with respect to water ownership and

water diversion have binding effect in

the state courts of Hawaii." Pet. App

28a.

In other words, the Supreme Court

Hawaii has stated that the State of Hawaii

the owner of the surplus water of the

mBnapepe River contrary to the adjudicated

Wiested rights of the Robinsons.

For the Solicitor General to say

‘\ ° . .

sed on the answers to certified questions,

@€ proceedings are pending in the McBryde

sii»

ise is far-fetched and contrary to. the

ord in this case. The attempt in the

= to maintain that further proceedings

Were contemplated was a patent attempt to

Ginduce the Court of Appeals to dismiss the

Base while maintaining the unconstitutional

Efect of the McBryde decision.

y ee oer

II!

The Fifth Circuit Court Is Not A Water

egulating Agency.

The Solicitor General makes’ the

Berroncous assumption that the Fifth Circuit

Peourt was regulating the use of water. In

Act, the trial judge was adjudicating water

ghts as a court in conformity with vested

ghts. There is no ongoing regulation of

e use of water in the,Hanapepe River. The

Ppurtenant water rights have been

: peantified. The rest belongs to the State.

a e Robinsons have appurtenant rights to

533,000 gallons per day to use on their

Bacient taro lands in Hanapepe, but not on

a,

Meir sugar lands. They have lost the right

their surplus water which is vastly more

portant. The judgment in McBryde is not

hilar to the action of a planning

p38

“‘@emmission to which a disappointed applicant

guesting approval of a development plan can

fubmit a new plan or ask for a variance.

IV

There Is No Procedure To Obtain

mpensation For Taking Of Plaintiffs' Vested

ter Rights.

Williamson County was a taking case

which compensation for the taking was

guested. It held that the landowner's

lure to sue in state court under an

erse condemnation procedure that was

Bailable made resort to the federal court

ecessary and improper. In answer to

Sue stion 5, the Supreme Court of Hawaii

feed that there was "no provision for a

t against the State seeking damages based

any ‘taking' resulting from the McBryde

at %e

@nion." Note 13 Pet. App. 3la. In any

mt, the Answer to Question 5 holds that

decision in McBryde precludes

pensation to the Respondents’ for the

meing of their water rights. Pet. App. 3la-

V

) The Robinsons Had Vested Rights In The

mmal Surplus Water Of The Hanapepe River.

The Solicitor General doubts that

Robinsons had vested rights to the normal

Eplus water of the Hanapepe River. Sol.

e Brief 14, note ‘ However, the

nion of the Supreme Court of Hawaii in

ritory v. Gay stated specifically that the

bption of the common-law doctrine of

Darian rights in 1930 “with reference to

mal surplus water would alter established

shts." 31 Hawaii 396. Furthermore, the

rt stated:

Water rights it need hardly be added

have financial value. The legal

possibility that some of the water may

be wasted by an owner is no

0

justification for depriving him of his

right thereto without just

compensation." 31 Haw. 401.

s is exactly what the Supreme Court of

baii did in 1973.

Although there was no need to

3 mantify the water being diverted in

| ritory Ve Gay, it was sufficient to

igate 7,000 acres of cane land. Id. 398.

s water was judicially admitted in

rritory v. Gay to be surplus water.

The maximum amount diverted by the

mM ditch from 1891 to 1949 was determined by

trial court in McBryde to be 40,000,000

llons per day. Finding No. 3l, Pet. App.

This finding was adopted by the District

rt. Pet. App. 75a. The right to own and

Wert that water was a vested right.

The Supreme Court in its Answers to

tified Question continues to deny the

binsons any vested rights in the surplus

ers of the Hanapepe River. The opinion

terates that the State owns all surplus

er and in Answer to Question 4 that

tritory v. Gay has no validity for res

jicata purposes. There is a very dark cloud

plaintiffs' title to its vested property

hts. Pet. App. 28a-3la.

Certainly plaintiff can make no

rther investment in irrigation systems,

ar mills, or other improvements requiring

assured water supply. The value of

intiffs' land has been drastically

Bpaired. At the time of trial, sugar land

appraised for tax purposes at $666 per

e and poor pasture land which it would

ome without water at $8 per acre. Finding

Fact 32 Pet. App.85a-86a.

f

f

=

;

The Solicitor General admits that

=

economic impact of the judicially

a ak tae oo a

-*

hioned rules and the extent of their

erference with reasonable investment-

ked expectations [can] be considered...

a federal court considering a taking claim

[if there -has been definitive state

Elin

Irt} action. ]" Sol. Gen. Brief, 1l. The

ial of Plaintiffs vested rights is

initive state action. No other judicial

ion is pending or contemplated. No

gulatory proceedings can be conducted as

regulatory system even exists.

thermore, no procedure exists in the state

@urts which allow plaintiffs any means of

aining compensation for the distribution

their vested rights.

Under these circumstances, the

rt of Appeals correctly determined that

federal court had jurisdiction over

aintiffs' federal claims which were ripe

adjudication. There is no reason why the

Be should be remanded to _the Court of

peals and this is not a case that requires

rther judicial attention in this Court.

Vi

The Judgment In Territory v. Gay Was A

feral Judgment And Its Validity And Res

Micata Effect Is A Federal Question Ripe

Adjudication.

ees

The Solicitor General's Brief

bres the issues raised by Respondent

ele in its Brief to the effect that the

eral courts have the power to effectuate

ir judgments. A clear case and

roversy exists between Plaintiffs

meinson and Petitioner state officials as

Mm validity and effect of Territory v. Gay.

The Supreme Court of Hawaii has

mce ruled that Territory v. Gay does not

; res judicata effect with respect to the

insons' right to divert the normal surplus

er from Koula to its own and Olokele's

ar fields. In McBryde, the court held

although Gay and Robinson was awarded

ownership of sormal surplus water in

itory v. Gay that case was decided ina

um, and since the court in McBryde

pted the riparian law of Massachusetts Gay

mobinson took nothing because there was no

thing as normal surplus water.

«it

In the Answer to Certified Question

Chief Justice Richardson now argues that

judicata does not apply because "we do

view the action in Gay II as one to

Mjoin a wrongful diversion of water." Pet.

mp. 30a. This is absolutely contrary to the

inions of all of the courts in Territory v.

In light of the Answers to

mtified Questions, the state officials

tinue to maintain that Territory v. Gay is

nullity". Robinson App. 21.

The federal courts have

-* isdiction to enforce their judgments

Minst collateral attack and the Court of

Meals had jurisdiction to declare the res

Beicata effect of its own judgment in

Eritory v. Gay against the continuing

ack of the state officials. Steelman v.

Continent Co., 301 U.S. 278 (1937); Dugas

American Surety Co., 300 U.S. 414 (1937);

al Loan Co. v. Hunt, 292 U.S. 234 (1934);

5

also: Aerojet General Corp. v. Askew,

F.2d 710 (5th Cir. 1575), appeal

missed, cert. denied 423 U.S. 908 (1975).

CONCLUSION

The federal issues were ripe for

Mejudication and were properly decided.

pre is no reason for further consideration

the Respondents' vested water rights which

be been in litigation for over half a

Mtury.

DATED: Honolulu, Hawaii, June 9,

Alexander C. Marrack

Counsel for Respondents

Robinson

~the