# Supplemental Brief — Ariyoshi v. Robinson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0260%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 1018 ## Text 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). 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0260%3A12. Public record. Not legal advice.