Amicus Curiae Brief — Nansay Hawaii, Inc. v. Public Access Shoreline Hawaii

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if i) Supreme Court, U.S.

) EILED

MAR} 22 1996

No. 95-1159

-_—--

= crenne

In The ——

Supreme Court of the United States

October Term, 1995

NANSAY HAWAIL, INC.,

Petitioner,

Vs.

PUBLIC ACCESS SHORELINE HAWAIL,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Hawaii

BRIEF OF THE STATE OF HAWAII

AS AMICUS CURIAE IN OPPOSITION

TO THE PETITION FOR CERTIORARI

Marcery S. BRONSTER

Attorney General

State of Hawaii

STEVEN S. MICHAELS*

Deputy Attorney General

State of Hawaii

*Counsel of Record

Department of the

Attorney General

425 Queen Street

Honolulu, Hawai’i 96813

(808) 586-1383

Counsel for the

State of Hawaii

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether, where a private landowner’s land use

permit is vacated and remanded by the state courts for

further proceedings so that a county planning agency

may, upon a full evidentiary record, consider ways that

the landowner’s proposed extensive hotel, golf course,

and resort complex can accommodate native Hawaiian

gathering rights tracing their origins to reservations in

the original land grants by the Kingdom of Hawaii, this

Court lacks jurisdiction for want of a “final judgment,”

or, alternatively, there is no “ripe” claim for federal judi-

cial relief, with respect to the landowner’s claim that the

state courts have violated substantive Due Process or

inflicted a “physical occupation” taking in violation of

the Just Compensation Clause?

2. Whether, even if Petitioner has presented a ripe

case for this Court’s review, the Supreme Court of

Hawaii's preliminary guidance concerning the scope of

native Hawaiian gathering rights in the context of this

case constitutes a denial of substantive Due Process or an

uncompensated taking of private property for public use

in violation of the federal Constitution?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2.0055. 005 ccc eeass sted i

TABLE OF CUOBDPppa A 4 ise takes xs heeneneesecans ii

TABLE OF AUTHORITIES... 0 .scs0,seepeoaecedens iii

INTEREST OF THE AMICUS CURIAE ............. 1

STATEMENT OF ‘THIER CAB ccs ces si cmccccscastcce 1

REASONS FOR DENYING THE WRIT............. 9

A. Nansay’s Claims are Not Ripe for Review in

this CQUlt cc ssivdsays a0 heed cosegen Obeen ee ees 10

B. Even if Petitioner Somehow Stated a Ripe Fed-

eral Claim, The Supreme Court of Hawaii's

Articulation of General Rules Governing

Native Hawaiian Gathering Rights is Well

Within Any Conceivable Formulation of the

State Courts’ Authority to Resolve Difficult

and Unique Questions of Property Law...... 16

CONCLUSIOIN ... «.0::s ca 0g ea ae ete eee 20

TABLE OF AUTHORITIES

Page

Cases:

Agins v. Tiburon, 447 U.S. 255 (1980) ................ 11

Aguiar v. Hawaii Housing Authority, 55 Haw. 478,

ES oh ak nS a's od nig 0% od 0c e's aa 000. 3

Ariyoshi v. Robinson, 477 U.S. 902 (1986)............. 11

Atascadero State Hospital v. Scanlon, 473 U.S. 234

A niin nie pag aeay bovdsedboekddecees 19

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930)...... 18

California v. Rooney, 483 U.S. 307 (1987) ............. 16

Corporation of the Presiding Bishop v. Hodel, 637 F.

Supp. 1398 (D.D.C. 1986) aff'd, 830 F.2d 374

Lr tevissedaeases dadbuaetiswbises sc 19

Demorest v. City Bank, 321 U.S. 36 (1942)............ 17

Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)........ 10

FCC v. Florida Power Corp., 480 U.S. 245 (1987)...... 10

FTC v. Standard Oil Co., 449 U.S. 232 (1980)......... 13

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ...... 10

Hodel v. Virginia Surface Mining & Reclamation

ht ie i a CEs 5 os a wedwa 4nd besecesccses 11

Hughes v. Washington, 389 U.S. 290 (1967) ........... 18

In re Chicago, Milwaukee, St. Paul & Pacific Railway,

op B&B or ey, Be 3p err errr Tree 19

Kaiser Aetna v. United States, 444 U.S. 164 (1980)... .5, 7

TABLE OF AUTHORITIES - Continued

Page

Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 656 P.2d

FUP CRED os 55.065 sa Acs Av hdd ie nceehsas essen nen 6, 8, 17

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ...............24.. Y

Kona Old Hawaiian Trails Group v. Lyman, 69 Haw.

Bi, TOR BAG TGR AOI osc nies ch eel Ee aie 3

Linkletter v. Walker, 381 U.S. 618 (1965).............. 19

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .... 14

Lucas v. South Carolina Coastal Council, 505 U.S.

SGD CRBs pk wa ceiniad ks oman oqneciaas 10, 12, 13, 18

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..... 3

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. SRR CI i 6a 6009 ede Rue eeelees <dhGn 10, 14

Nollan v. California Coastal Comm'n, 483 U.S. 825

CRE Rs hn ns bein 4 inn nce ncnccaak end eke eke Ga ees 15

Mahuiki v. Planning Commission, 65 Haw. 506, 654

eB. a Spee Soe Te ror eT Pr reso Pere 1

Cont Oe; 2 eee GF Con os oo a ewes evan 7, 8

Pai ‘Ohana v. United States, No. 95-15202 (9th Cir.

PD. A Es nde nd Ene 1k kkees Case dee aeear>® 14

Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d

1247 (1992) cert. denied, 113 S. Ct. 1277 (1993)...... 8

Pele Defense Fund v. Puna Geothermal Venture, 77

Ramm. GG, GEL Fie Rew GEN oaks cece cneceeccasen 3

Penn Central Transportation Co. v. New York City,

SW CSae BIG COG ve wa Noe A gh a Bl nts Wawa ae 11

Pennell v. City of San Jose, 485 U.S. 1 (1988)......... 10

TABLE OF AUTHORITIES - Continued

Page

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469

SAD ta dinn cd nen d ahd nese Oawndie us eackcdcs 10, 16

Public Access Shoreline Hawaii v. Hawaii Planning

Commission, 79 Haw. 246, 900 P.2d 1313 (App.

to) PERE TTY Fy pe re ee ee tet To yee 4,7, 17

Public Access Shoreline Hawaii v. Hawaii Planning Com-

mission, 79 Haw. 435, 903 P.2d 1246 (1993) ....... passim

Reppun v. Board of Water Supply, 65 Haw. 531, 656

Rane OO IPOD wknideueh seed siVh hoe bucadaven sci 6, 15

Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw.

SORES. ss ks. F1GU Ee abe GERAD ake aah Ov es Suede Winch: 20

Robinson v. Ariyoshi, 65 Haw. 641, 658 P.2d 241

CRP << 5 oan £ OW Ia So 04 RES RARE Ci ak kd 6

Robinson v. Ariyoshi, 877 F.2d 215 (9th Cir.

so PEPER OE LER PET eT OPIN Ty PELL Se eee Pe 11, 16, 20

Robinson v. Ariyoshi, 933 F.2d 781 (9th Cir. 1991)..... 20

San Diego Gas & Electric Co. v. San Diego, 450 U.S.

Ge ERMAN Fok ne vac ccews cud ence Pincu deste ibe nie cx. 11

Sandin v. Conner, 115 S. Ct. 2293 (1995) ............. 17

Sotomura v. County of Hawaii, 460 F. Supp. 473 (D.

SOU BOD 6s 6.04 cd save ebbanns wh digs ecatdi souk cs 20

Stevens v. City of Cannon Beach, 114 S. Ct. 1332

GRUPEs baa ku poacedwades cde carbides keeles 10, 14

United States v. Mendoza, 464 U.S. 154 (1984) ........ 20

United States v. Salerno, 481 U.S. 739 (1987)....... 10, 16

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449

C5: Se AIO 6k kd 6s04 eee) Uhbaes hb eee eel 13

TABLE OF AUTHORITIES - Continued

Page

United States v. Security Industrial Bank, 459 U.S. 70

(196Z) . ccvcccccssctenphabsnesecssceletesesenaeneee 19

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)......... 10, 11, 13

Yee v. City of Escondido, 503 U.S. 519 (1992) ...... 10, 15

Feperat Statutes AND RULE:

16 USC. GE SUG CEG E) 6 i cv tcsccuctsccesupencatar 1

28 USC. @ TIGR CIGD oases aateddessivideevavers 10

Pub. L. No. 86-3, 76 Stat. 4 (Mar. 18, 1959).......... 16

S. Ce. RB. Bivecsccaccsssecd0tecctacetasunessaucen 9, 18

State CONsTITUTION, STATUTES AND RULEs:

Fiaw. Const. ast. AE, | 7 (SVG cccssscdavassvesnchecs 7

Baaw. Rev. Stat. & 2d. CRPpe 06 bbs sccccdencséeus 6, 8, 9

Saw. Rev. Sik B 79s Cibeie ce ccccecsccssesacenmmeate 7

Haw. Administrative Procedure Act, Chapter 91...... 1 |

Haw. Rev. Stat. § 91-1(5) (1993) .................... y We |

Haw. Rev. Stat. § 91-9-15 (1993)..............0c0000ee 2 |

Flaw. Rev. Gin’. BSED Cleves cbs csecscsesesassaisnn 2

Haw. Rev. Stat. § 91-9(g) (1993)..................045. 2

Flaw. Rev. Sat. G Si-O CHG oo vans csadcunsscdbiasel 2

Fiaw. Rev. Sint. B FaGS GHPGGw vss vccccchcctdasketviass 2

Haw. Rev. Stat. § Di-16 C1GSD). 2 osicccccddpoccsdccctas 2

Ee |

Haw.

Haw

Haw.

vii

TABLE OF AUTHORITIES - Continued

Rev.

Stat

Stat.

Stat

Page

S . 0 | MRRP R a paie se. 2

Chapter 205A (1993)................ 2

Se ao. > ode déoneeseveeos 2

Se ee ee 1

Pe I oo 50 cc osc a cacdls ac 1

. § 205A-26(1)(A) (1993) ............... 2

. § 205A-26(2)(B) (1993)................ 2

. § 205A-26(3)(C) (1993) ............... 2

fe “ jf Sees ae 1

Be ee 1

Principles Adopted by the Board of Commissioners to

Quiet Land Title in Their Adjudication of Claims

Presented to Them, Stat. L. Kamehameha III 81 et

seq., reprinted in Il Rev. L. Haw. (1925)............. 5

Haw. County Adm. R. § 4-2(6)....................... 4

OrHer AUTHORITIES:

Brown, Insured Legal Opinions, 1961 Ins. L.J. 712..... 19

INTEREST OF THE AMICUS CURIAE

Petition Nansay, Hawaii, Inc., has attacked, as a

breach of substantive Due Process, and as an uncompen-

sated judicial “taking” by “physical occupation,” the

Hawaii Supreme Court's construction of certain state con-

stitutional provisions and state statutes that bear on the

gathering rights of native Hawaiians — descendants of the

original inhabitants of Hawaii. For this reason, the State

of Hawaii has an interest in this case, and, through its

Attorney General, submits this amicus curiae brief.

STATEMENT OF THE CASE

1. In response to passage of the federal Coastal

Zone Management Act of 1972, 16 U.S.C. §§ 1451-64

(1991), the Hawaii legislature enacted Chapter 205A,

Hawaii Revised Statutes, which declared it the policy of

the State “to preserve, protect, and where possible, to

restore the natural resources of the coastal zone of

Hawaii.” Haw. Rev. Stat. § 205A-21 (1993). See Mahuiki v.

Planning Commission, 65 Haw. 506, 517, 654 P.2d 874, 881

(1982). The statute achieves this purpose by delegating to

each of Hawaii's four counties the tasks of (1) establish-

ing Special Management Areas (“SMAs”) along the shore-

line, and (2) reviewing requests for “use permits”

allowing development within an SMA. See Haw. Rev. Stat.

§§ 205A-23, 205A-28, 205A-29 (1993). The law requires

that, in consultation with the Office of State Planning (a

state agency), the delegated “authority in each coun-

ty ... shall adopt rules under chapter 91[, Haw. Rev. Stat.,

the Hawaii Administrative Procedure Act,] setting the

special management area use permit application pro-

cedures, conditions under which hearings must be held,

and the time periods within which the hearing and action

for special management area use permits shall occur.” Id.

§ 205A-29. These rules must in turn “comply with the

objectives and policies” of Chapter 205A (id. § 205A-5),

and no development may be permitted in the SMA unless

the county “has first found,” among other things, “[t]hat

the development is consistent with the objectives, poli-

cies, and special management area guidelines of this

chapter[.]” Id. § 205A-26(2)(B). The “guidelines” state that

“developoment in the special management area shall be

subject to reasonable terms and conditions set by the

[county] authority in order to ensure . . . [a]dequate

access, by dedication or other means, to publicly owned

or used beaches, recreation areas, and natural reserves is

provided to the extent consistent with sound conserva-

tion principles.” Id. § 205A-26(1)(A). The guidelines also

provide that the counties “shall seek to minimize, where

reasonable[,] . . . [ajny development which would reduce

or impose restrictions upon public access to tidal and

submerged lands, beaches, portions of rivers and streams

within the special management areas and the mean high

tide line where there is no beach.” Id. § 205A-26(3)(C).

2. This case arises out of the interaction of the Big

Island of Hawaii's (“Hawaii County’s”) specific pro-

cedures for adjudicating SMA use permit requests and

the “contested case” provisions of the Hawaii Adminis-

trative Procedure Act, Haw. Rev. Stat. §§ 91-1(5), 91-9 - 15

(1993). These latter provisions, which specify the con-

tours of trial-type administrative process in Hawaii,! are

1 In a Chapter 91 “contested case,” participants are entitled

to specific notice and opportunity to be heard (Haw. Rev. Stat.

§ 91-9 (1993)), and to submit evidence and to cross-examine

opposing witnesses (id. § 91-10). Among other things, state law

also prohibits an agency deciding a contested case from

considering matters outside the administrative hearing record

(id. § 91-9(g)), and an agency decision must be backed by

findings of fact and conclusions of law that are in turn subject to

judicial review in the courts (id. §§ 91-12, 91-14, 91-15).

triggered under state law by administrative action “in

which the legal rights, duties, or privileges of specific

parties are required by law to be determined after an

opportunity for agency hearing.” Id. § 91-1(5). Contested

case hearings can be triggered under state law either by

the state or federal Constitution’s requirements of pro-

cedural Due Process, see Aguiar v. Hawaii Housing Author-

ity, 55 Haw. 478, 496, 498, 522 P.2d 1255, 1265, 1268 (1974),

or by statutes or administrative rules that provide for

administrative hearings. See Pele Defense Fund v. Puna

Geothermal Venture, 77 Haw. 64, 68, 881 P.2d 1210, 1214

(1994). In this case, the state court below construed the

local administrative rules of Hawaii County to have con-

ferred hearing rights for all parties with minimal “injury-

in-fact” standing when a landowner has applied for an

SMA permit. Public Access Shoreline Hawaii v. Hawaii

County Planning Comm'n, 79 Haw. 435, 432, 903 P.2d 1246,

1253 (1993) (“PASH II”) (citing cases).

3. In assessing the requirement of “standing,” the

Hawaii Supreme Court, like this Court, has recognized

aesthetic and environmental interests as generally suffi-

cient to confer the ability to challenge land development

actions; conversely, the determination that a party has

bare “injury-in-fact” standing does not signify that that

party has any “property” interest in the land at issue.? As

2 Compare Kona Old Hawaiian Trails Group v. Lyman, 69 Haw.

81, 90, 734 P.2d 161, 167 (1987) (“[I]f the development . . . could

result in the loss of access routes to the shoreline or the right to

traverse ancient trails, the association’s members probably were

‘specially, personally and adversely affected’ by the

administrative decision”), with Lujan v. Defenders of Wildlife, 504

U.S. 555, 572 n.7 (1992) (“[U]nder our case law, one living

adjacent to the site for proposed construction of a federally

licensed dam has standing to challenge the licensing agency’s

failure to prepare an environmental impact statement, even

confirmed by County rule, standing to participate in an

SMA permit proceeding - and the right to demand trial-

type procedures — is conferred upon any entity that “can

demonstrate that [it] will be so directly and immediately

affected by the Commission’s decision [that its] interest in

the proceeding is clearly distinguishable from that of the

general public[.]” Haw. County Admin. R. § 4-2(6). See

Public Access Shoreline Hawaii v. Hawaii Planning Commis-

sion, 79 Haw. 246, 250 n.6, 900 P.2d 1313, 1317 n.6 (App.

1993) (“PASH I”).

4. In 1990, Petitioner Nansay Hawaii, Inc., applied

to the Hawaii County Planning Commission for an SMA

use permit to allow Nansay to build an extensive resort

complex along the Kona coast consisting of two hotels

containing more than 1000 guest rooms, a golf course and

clubhouse, in addition to more than seven hundred multi-

ple family or single-family residential units, as well as

restaurants, retail shops, an artisan village, and a child

care center. PASH II, 79 Haw. at 429, 903 P.2d at 1250. The

proposed development encompasses more than 450 acres

of ecologically and culturally important shoreline area

within the SMA on the Big Island. Id. Despite these facts,

Nansay sought to have its application processed without

the protection afforded to interested parties by a con-

tested case proceeding. Id. Some individuals, members of

Respondent Public Access Shoreline Hawaii (“PASH”),

were permitted to adduce evidence of their standing, and

testified under oath in opposition to aspects of the pro-

posed development, including its possible effect on

tidally-influenced anchialine ponds at Kohanaiki. PASH I,

79 Haw. at 251, 900 P.2d at 1318. In this context, PASH’s

though he cannot establish with any certainty that the statement

will cause the license to be withheld or altered, and even though

the dam will not be completed for many years.”)

spokesmen and member witnesses attempted to show

that PASH had standing to request a trial-type hearing as

a result of the potential rights that certain PASH members

enjoyed as native Hawaiians to gather shrimp from the

anchialine ponds to use as bait for subsistence fishing

purposes. Id. See also Record on Appeal at 1156 (Rothstein

testimony: “native Hawaiian fishing and food gathering

rights” are matters on which “our members are directly

impacted,” and that “our members have been engaged

in” the “harvesting, maintaining from those ponds” “for

decades”). The Commission found, however, that PASH

did not have standing, and summarily granted the per-

mit. PASH II, 79 Haw. at 430, 903 P.2d at 1250.

5. The claims PASH invoked to distinguish its inter-

est in the permit proceeding derive from unique aspects

of Hawaiian land law. As this Court is aware, allodial

(non-feudal) title was distributed in Hawaii by King

Kamehameha III “during the Great Mahele or royal land

division.” Kaiser Aetna v. United States, 444 U.S. 164, 167

(1980). Under laws authorizing that division, private title

did not carry the “fuli bundle” of rights given with fee

simple title under English common law. In particular, the

Principles Adopted by the Board of Commissioners to Quiet

Land Title in Their Adjudication of Claims Presented to Them,

Stat. L. Kamehameha III 81 et seq., reprinted in II Rev. L.

Haw. (1925) (App. 2124 et seq.) (“Land Commission princi-

ples”) state: -

The whole power of the King to confer and

convey lands to which private equitable claim

now attaches, is reposed in the Commission.

What is the nature and extent of that power

which the King has bestowed upon this board?

It can be no other than his private or feudatory

right as an individual participant in the owner-

ship, not his sovereign prerogatives as head of

the nation. Among these prerogatives which

affect lands, are the following:

.. . 3rd. To encourage and even to enforce the

usufruct of lands for the common good.

These prerogatives, powers and duties, His

Majesty ought not, and ergo, he cannot surren-

der. Hence the following confirmations of the

board, and the titles consequent upon them

must be understood subject to these conditions.

Stat. L. Kamehameha III at 81-84. Under state law, the

power “[t]o encourage and even to enforce the usufruct

of lands for the common good” is a broad grant that

“reserve[d] to the sovereign the right to regulate and

allocate water [and other] resources in accord with the

needs of the people of the Kingdom.” Reppun v. Board of

Water Supply, 65 Haw. 531, 544, 656 P.2d 56, 66 (1982); see

also Robinson v. Ariyoshi, 65 Haw. 641, 675, 658 P.2d 287,

311 (1982). Another law, codified at Haw. Rev. Stat. § 1-1

(1993), and which dates to the Hawaiian monarchy, pro-

vides that “[t]he common law of England, as ascertained

by English and American decisions, is declared to be the

common law of the State of Hawaii in all cases, except as

otherwise expressly provided by the Constitution or laws

of the United States, or by the laws of the State, or fixed

by Hawaiian judicial precedent, or established by Hawai-

ian usage.” This law, for many years prior to this case

(and, so far as the record shows, prior to Nansay’s pur-

chase of its property), had formed the basis for claims of

gathering rights, either under principles of English “cus-

tom,” or under precepts of “Hawaiian judicial precedent”

or “Hawaiian usage.” See Kalipi v. Hawaiian Trust Co., 66

Haw. 1, 656 P.2d 745 (1982). It has also been the settled

law that ocean-based Hawaiian “fishing rights” (includ-

ing the incidents necessary to exercise those rights, such

as the gathering of bait here) were excepted from “fee

simple” title. Oni v. Meek, 2 Haw. 87, 95 (1858) (preemp-

tion of “specific” gathering rights not codified in Haw.

Rev. Stat. § 7-1 inapplicable to “fishing rights”).

6. On PASH’s appeal to the state courts, the claims -

even though not reduced to a judgment - of Respondent’s

members were deemed sufficient to distinguish PASH

from the public as a whole, and were therefore held to be

sufficient to require a contested case hearing. See PASH I,

79 Haw. at 253, 900 P.2d at 1320; PASH II, 79 Haw. at 452,

903 P.2d at 1273. Nine different state judges, without

dissent, rejected Nansay’s claim that its permit should be

upheld, the supreme court finding it critical that Nan-

say’s and the County’s refusal to hold a trial-type hearing

“effectively curtailed PASH from developing a complete

record” as to the scope of the conditions to be placed

upon the permit. PASH II, 79 Haw. at 448 n.39, 903 P.2d at

1269 n.39.

7. In its opinion, the Supreme Court of Hawaii also

clarified the duty of the Commission on remand. The

Court noted that Article XII, § 7 of the Hawaii Constitu-

tion provides that “[t]he State . . . shall protect all rights,

customarily and traditionally exercised for subsistence,

cultural and religious purposes and possessed by

ahupua’a[3] tenants who are descendants of native

Hawaiians who inhabited the Hawaiian Islands prior to

1778, subject to the right of the State to regulate such

rights.” PASH II, 79 Haw. at 437, 903 P.2d at 1258. But this

mandate, the Court found, warranted “protection” of

Hawaiian gathering rights only “to the extent feasible,”

and only so long as Nansay was not subject to ” ‘actual

harm.’” Id. at 450 n.43, 903 P.2d at 1271 n.43 (quoting

3 An “ahupuaa” is a unit of land generally running from the

mountains to the sea, and constituted the general type of land

unit awarded in the Great Mahele. Kaiser Aetna, 444 U.S. at 167.

Kalipi, supra, 66 Haw. at 12, 656 P.2d at 752). The Court

also stressed that only “non-confrontational aspects of

traditional Hawaiian culture” would be entitled to pro-

tection, id. at 447, 903 P.2d at 1268, and that “rights of

access and collection will not necessarily prevent land-

owners from developing their lands.” Id. at 450, 903 P.2d

at 1271.

8. Against this background, the Supreme Court of

Hawaii also provided guidance to the County Commis-

sion on a number of unresolved issues bearing on gather-

ing rights. The Court began with its 1982 decision in

Kalipi v. Hawatian Trust Co., 66 Haw. 1, 656 P.2d 745 (1982),

which had held, based on specific concessions made by

the Plaintiff in that case, that there was “ ‘an insufficient

basis’ ” in the record there “ ‘to find that [particular gath-

ering] rights would, or should, accrue to persons who did

not reside within the ahupuaa [land district] in which

such rights are claimed.’ ” PASH II, 79 Haw. at 439, 903

P.2d at 1260. The Court below pointed to Kalipi’s broad

language to the effect that “[t]he precise nature and scope

of the rights retained by § 1-1 would, of course, depend

upon the particular circumstances of each case,” 66 Haw.

at 12, 656 P.2d at 749-50, and noted that, in a case decided

a decade after Kalipi, the Court had held that native

Hawaiian litigants should be permitted to litigate fact-

specific claims of customary gathering rights, based on

unique evidence of gathering practices in a particular

district. PASH II, 79 Haw. at 439-40, 903 P.2d at 1250-61

(discussing Pele Defense Fund v. Paty, 73 Haw. 578, 837

P.2d 1247 (1992), cert. denied, 113 S. Ct. 1277 (1993)).

Clarifying its earlier decision in Oni v. Meek, 2 Haw. 87

(1858), the Court also held that native Hawaiian litigants

should not be foreclosed from establishing, through evi-

dence, traditional and customary practices, and the rea-

sonable exercise thereof, simply because Oni had

“rejected one particular claim [the right to pasture

horses] based upon an apparently non-traditional prac-

tice that had not achieved customary status in the area

where the right was asserted.” Id. at 441, 903 P.2d at 1262.

Relying on the Land Commission Principles, and the rights

preserved by § 1-1, the Court resolved conflicts in prior

case law concerning the scope of Hawaiian custom, and

held that Hawaiian gathering rights were “sovereign” in

nature, and may be asserted “notwithstanding arguable

abandonment of a particular site[.]” Id. at 450, 903 P.2d at

1270.

9. Although the Court provided this guidance, it

stressed that, if a customary right has been factually

proved, “access is only guaranteed in connection with

undeveloped lands,” state law “does not require the pre-

servation of such lands[.]” 79 Haw. at 451, 903 P.2d at

1272. The mandate below thus means only that “the

State,” via the County, “does not have the unfettered

discretion to regulate the rights of ahupua’a tenants out

of existence.” Id. Nansay was expressly allowed on

remand to challenge any and all of PASH’s fact-based

contentions as to customary usage. Id. at 448 n.39, 903

P.2d at 1269 n.39. On this basis the court rejected Nan-

say’s claims that the interlocutory mandate constituted a

“judicial” or “regulatory” taking. Id. at 451-52, 903 P.2d at

1272-73.

REASONS FOR DENYING THE WRIT

Nansay’s Petition does not adduce any “compelling

reasons” that justify expenditure of this Court’s scarce

resources, and should be denied. See S. Ct. R. 10. None of

the issues presented is ripe, except for perhaps a pure

and totally meritless “facial” challenge to an interlocu-

tory order of a state court — an attack that faces “an uphill

battle” on an “especially steep” slope. Keystone Bit-

uminous Coal Association v. DeBenedictis, 480 U.S. 470, 495

(1987). See also United States v. Salerno, 481 U.S. 739, 745

(1987). That slope is even steeper, as Nansay’s claims,

which involve the use of tidally-influenced anchialine

ponds along Hawaii's shoreline, are controlled by Phillips

Petroleum Co. v. Mississippi, 484 U.S. 469, 484 (1988),

which, as a federal matter, allocates power in this context

unequivocally to the States under the Equal Footing Doc-

trine. Nansay has given no reason to revisit Phillips, nor a

single good reason why the state courts’ efforts to work

through difficult problems of local law should be subject

to review in this case. Given this case’s posture, more-

over, Nansay’s federal claims, if granted, would wrongly

have this Court encourage state courts to generate “pro-

cedural injustice” by summarily terminating native rights

claims at the behest of private landowners. Compare

Stevens v. City of Cannon Beach, 1148S. Ct. 1332, 1336 (1994)

(Scalia, J., joined by O’Connor, J., dissenting from the

denial of review).

A. Nansay’s Claims are Not Ripe for Review in this

Court.

Section 1257 of Title 28 limits this Court’s power to

review only “final judgments or decrees” of the state

courts of last resort. This limit is especially important

when a Petitioner alleges that a state court ruling has

“taken” its property for public use without just compen-

sation, or acted in breach of substantive Due Process. For

nearly twenty years,* this Court has routinely turned

4 See Dolan v. City of Tigard, 114 S. Ct. 2309, 2315 n.4 (1994);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1010-14 &

nn.3-4 (1992); Yee v. City of Escondido, 503 U.S. 519, 526-32 (1992);

Pennell v. City of San Jose, 485 U.S. 1, 9-14 (1988); First English

Evangelical Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304, 311-12 (1987); FCC v. Florida Power Corp., 480 U.S.

245, 250-53 (1987); MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340-351 (1986); Williamson County Regional Planning

away litigants making such claims when further adminis-

trative or judicial proceedings remain to be had, and the

state entities (here the state courts) alleged to be responsi-

ble for the asserted “taking” or “due process” deprivation

have not yet “arrived at a final, definitive position

regarding how [they] will apply the [law] at issue to the

particular land in question.” Williamson County Regional

Planning Commission v. Hamilton Bank, 473 U.S. 172, 191

(1985). Indeed, this Court, in 1986, summarily directed

the United States Court of Appeals for the Ninth Circuit

to reconsider a federal decree striking down certain fea-

tures of Hawaii state court judgments arising out of simi-

lar interpretations, in the context of private rights to fresh

surface water, of the very Land Commission Principles at

issue in this case. See Ariyoshi v. Robinson, 477 U.S. 902

(1986), action dismissed on remand, 887 F.2d 215 (9th Cir.

1989). Although such a summary disposition does not

bind the Court as fully as an opinion issued after plenary

review, the fact that granting the Petition here would

sharply conflict with this Court’s own action in a highly

analogous case from Hawaii is a factor that counsels

strongly against granting review.°

Comm'n v. Hamilton Bank, 473 U.S. 172-190 (1985); Hodel v.

Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 297

(1981); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621,

631-32 & n.12 (1981); Agins v. Tiburon, 447 U.S. 255, 260 (1980);

Penn Central Transportation Co. v. New York City, 438 U.S. 104,

112-15 & n.13, 137-38 & n.34 (1978).

> In the Robinson litigation, the Ninth Circuit Court of

Appeals held that there is no basis for federal jurisdiction of any

kind to assert a taking or substantive Due Process claim when,

in a proceeding in the nature of a quiet-title action, the state

courts have yet to render a “final judgment,” with “the certainty

of res judicata, or the effect of collateral estoppel,” actually

apportioning the property at issue. 887 F.2d at 219. The Ninth

Circuit so ruled even though assertedly revolutionary rulings of

the state court “would bind lower courts in future litigation,”

and “placed a cloud on the title of the various private owners.”

Petitioner concedes, as it did below, that the finality

doctrine prohibits review of any claim that the Hawaii

Supreme Court has inflicted a “regulatory taking,” but

asserts review should still be granted because Petitioner

has made a “judicial taking” and a “physical occupation”

claim. Neither claim raises any convincing, let alone,

compelling reason for granting review.

First, even if state courts could ever be deemed to

“take” property for public use by declaring the law in

property cases, there is no reason to treat such claims of

“judicial” taking with greater solicitude - and a less

stringent ripeness requirement — than claims that attack

“regulatory” actions of nonjudicial officials. Indeed, to

accept Nansay’s approach would turn the precepts of

federalism and respect for the state courts on their head.

It therefore must be the law that the same ripeness rules

that bar Petitioner’s regulatory taking claim also bar

Nansay’s claim of “judicial” taking. Because Nansay con-

cedes it may “not present here” “a regulatory takings

claim” (Pet. at 25 n.13), it follows that, at a minimum, the

effects of the state supreme court's guidance concerning

the effect of native Hawaiian gathering rights on the

development conditions that may be inserted into Nan-

say’s SMA use permit are not properly on review here.

Indeed, Nansay’s invocation of Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), only confirms this.

In Lucas, the Court held that state regulation “that

deprives land of all economically beneficial use” cannot

Id. Rather than resolve a conflict in the courts, the instant

Petition seeks to create conflict on the federal ripeness

requirement — one which is itself highly dependent on state law

analysis. Even before considering whether there has been

colorable disobedience of federal law by the state supreme court

below, the Court should view the agreement of the Supreme

Court of Hawaii, and the Ninth Circuit, on the requirements for

a justiciable controversy in this context, as a factor strongly

weighing against certiorari.

be sustained under the Taking Clause, without the pay-

ment of compensation, merely by an “ ‘ipse dixit’ ” to the

effect that what previously was “ ‘private property’ ” is

now “ ‘public.’ ” Id. at 1031 (quoting Webb’s Fabulous Phar-

macies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980)). Yet, even

assuming, arguendo, that (1) this language applies to

“judicial taking” claims; (2) Nansay has shown an “ipse

dixit”; and (3) Nansay has also shown a deprivation of

“all economically beneficial use” of its land (none of

which assumptions hold true), Lucas confirms that a liti-

gant must have “obtained a final decision regarding how

{he} will be allowed to develop [his] property,” before he

is “entitled to a definitive adjudication of his takings

claim in this Court.” Id. at 1011 (quoting Williamson

County, 473 U.S. at 190). If the “judicial taking” theory is a

valid constitutional basis at all for challenging state court

decisions elaborating state law rules of property, Wil-

liamson County applies in full force to claims made under

that theory. And here, of course, far from “shrugg|ing] off

the possibility of further administrative and trial pro-

ceedings,” Lucas, 505 U.S. at 1011, the state courts have

granted Nansay every opportunity to show that it would

be “harmed” by including certain gathering rights in its

SMA permit, or, more important, that PASH’s claims are

factually baseless to begin with.

Nor can Nansay urge there has been a “temporary”

taking of its land. For it is the essence of the Williamson

County ripeness doctrine that delays in obtaining devel-

opment permits due to a landowner’s failure to comply

with existing procedural mandates are not takings, but,

rather, are the “inevitable cost of doing business in a

highly regulated society.” 473 U.S. at 204 (Stevens, J.,

concurring in the judgment). A ripe case is not shown by

mere complaints of “expense and disruption,” and “pro-

tracted adjudicatory proceedings,” FTC v. Standard Oil

Co., 449 U.S. 232, 243-44 (1980), cited with approval, Wil-

liamson County, 473 U.S. at 192. Nansay does not, and

cannot, say that its applications for protection against

native gatherers “would be futile[.]” MacDonald, Sommer

& Frates v. Yolo County, 477 U.S. 340, 353 n.8 (1986).

Rather, “a meaningful application [by Nansay] has yet to

be made.” Id.

Nansay does not deny that it has correctly been adju-

dicated to have wrongly attempted to expedite its permit

application through a flawed procedure, “except to the

extent Public Access’s purported standing is based on its

members having legal interests in Nansay’s land as a

result of the Supreme Court’s opinion.” Pet. at 10-11. The

answer here is that the opinion in PASH II does not give -

at least not without further proceedings —- any new pres-

ent (or future) posessory interests in the land at issue. As

the Ninth Circuit has held in construing PASH II in a

related context, “the Hawaiian Usage clause does not

support the proposition that native tenants possess exclu-

sive use and occupancy rights over kuleana lands they

failed to claim.” Pai ‘Ohana v. United States, No. 95-15202

(9th Cir. Feb. 2, 1996). In fact, PASH II holds only that

customary rights in Hawaii are factual in nature, and

PASH has the right to adduce the pertinent facts. Rather

than create a ripe issue Nansay may invoke, the decision

below simply avoids the “procedural injustice” that

would have accrued against PASH had its members’

claims been terminated without a full hearing. There is no

basis for finding fault with that. See Stevens v. City of

Cannon Beach, 114 S. Ct. 1332, 1336 (1994) (Scalia, J.,

joined by O’Connor J., dissenting from denial of review).

See generally Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982) (arbitrary termination of statutory claim).

Nansay also argues that review should be granted

because it “must suffer the now permanent entrance onto

and occupation of its property of an enlarged class of

native Hawaiian gatherers,” and, hence, there has been

ordered an uncompensated physical occupation of its

land. Pet. at 25 n.13. This is not so. Not only is any

“occupation” by native gatherers at worst only temporary

in nature; it is an occupation that Nansay itself caused by

failing to comply with state procedure. Nansay has never

been barred from precipitating a ripe decision from the

Planning Commission; nor, more importantly, has Nansay

ever been barred from initiating a trespass or ejectment

action in the state courts, in which the unadjudicated

factual claims of custom could be decided in advance of a

Commission ruling. Nansay, in many fora, could put

PASH to its proof, and assert alternatively that it is

“harmed” by PASH’s access (say, by a depression in land

value), or that PASH’s prima facie claim is groundless.

Nansay could also invoke recognized state-law defenses

to the assertion of rights arising out of the Land Commis-

sion Principles. These include the defenses of “public use”

(i.e., that the interference with Nansay’s interest is pre-

venting job creation, resource preservation, or other pub-

lic good), “laches” (i.e., long and prejudicial delay in

assertion of the “usufruct” of the land), and “estoppel”

(i.e., “manifest injustice” would be perpetrated by asser-

tion of the public right at this time). See Reppun v. Board of

Water Supply, 65 Haw. 531, 557 & n.18, 560 & nn. 20-22,

562 & n.24, 656 P.2d 56, 74 & n.18, 76 & nn. 10-22, 77 &

n.24 (1982). In light of these defenses, even if what Nan-

say argues about Hawaiian property law is true, there has

been no one, let alone an “expanded class” of native

gatherers, issued “a government license” to intrude upon

Nansay’s claimed land. See Yee v. City of Escondido, 503

U.S. 519, 532 (1992). Nansay’s “physical occupation”

claim, and its contention that this case “is analytically

indistinguishable from Nollan v. California Coastal

Comm'n, 483 U.S. 825, 831 (1987)” (Pet. at 23), is accord-

ingly without merit. See Nollan, 483 U.S. at 832 & n.1.

In short, Nansay’s claims are ripe only if this Court

wished to indulge broad facial attacks on general state-

law property doctrines that may have no effect at all

when, on remand, relief for one party or another is

ordered. Nothing in this Court’s jurisprudence, recent or

otherwise, suggests any member of this Court shares — or

should share — this desire. Here, Nansay “must establish

that no set of circumstances exists under which the [opin-

ion below] would be valid.” United States v. Salerno, 481

U.S. 739, 745 (1987). Given Nansay’s options, this test

cannot be met. Indeed, even if Nansay has been preju-

diced by the “law of the case,” there are simply “too

many ‘ifs’” surrounding its claims to warrant review.

California v. Rooney, 483 U.S. 307, 313 (1987) (per curiam).

This Court “cannot know the extent of the injury suf-

fered” by Nansay as a result of the judgment below; there

is no ripe claim. See Robinson v. Ariyoshi, 887 F.2d 215, 218

(9th Cir. 1989). Review should thus be denied.

B. Even if Petitioner Somehow Stated a Ripe Fed-

eral Claim, The Supreme Court of Hawaii's

Articulation of General Rules Governing

Native Hawaiian Gathering Rights is Well

Within Any Conceivable Formulation of the

State Courts’ Authority to Resolve Difficult and

Unique Questions of Property Law.

Focusing mainly on two asserted “changes made by

the PASH court” to the contours of native Hawaiian gath-

ering rights, Nansay asserts that “the custom doctrine has

been distorted in Hawaii out of all reasonable juridical

recognition.” Pet. at 14. This assertion is simply false.

There is no basis for review.

First, Nansay’s claims fail given Phillips Petroleum Co.

v. Mississippi, 484 U.S. 469 (1988), which held that every

State upon entering the union takes “title to lands lying

under waters that [are] influenced by the tide,” regard-

less whether such waters are “navigable in fact.” Id. at

472. This case is indisputably about tidally influenced

lands, which were conveyed to Hawaii upon statehood.

See Pub. L. 86-3, 73 Stat. 4 (Mar. 18, 1959). And, as this

Court has rade clear, how particular facts “would trans-

fer ownership of these lands from the State to petitioners

is a question of state law.” 484 U.S. at 484. State court

power to define local law is at its height in this case. See

PASH II, 79 Haw. at 436 n.20, 903 P.2d at 1257 n.20.

Second, Nansay’s theory, if accepted by this Court,

would go well beyond any arguable basis for limiting

state court authority to define “property,” and would

make a whole range of accepted judicial methods uncon-

stitutional. For example, Nansay’s attack on the asserted

“expansion” of Hawaiian customary rights to those who

do not actually own land within a particular land district

flows from an interpretation of the Kalipi opinion that

ignores both that that opinion arose out of particular

concessions made by the plaintiff there, and the fact that

such ownership-based requirements are at odds with the

requirement of custom as a general matter. Kalipi, as

noted above, was very clear that claims of native Hawai-

ian gathering rights “would, of course, depend upon the

particular circumstances of each case,” 66 Haw. at 12, 656

P.2d at 749-50, and that fact should end any claim of

judicial taking. Indeed, at worst, the Hawaii Supreme

Court's earlier cases “had indicated a tentative quality in

[their] pronouncements,” and clarification of the law,

even limiting past cases to their facts, plainly “rest[s] on a

fair and substantial basis.” Demorest v. City Bank, 321 U.S.

36, 43 (1942).

Even less persuasive is Nansay’s argument that

Kalipi’s dicta concerning the scope on gathering rights on

developed land, bound the state courts to enshrine, as an

inalterable “rule of property,” the idea that landowners,

in the face of gathering rights, had a vested right to

“destroy gatherable items,” or “develop their land” “with

impunity” (Pet. at 25). As the Hawaii courts held here, see

PASH I, 79 Haw. at 253, 900 P.2d at 1320, no court decision

had addressed a case actually involving the interaction of

the “right to gather” and the “right to develop,” and,

hence, nothing in PASH II actually “overrule[d] any hold-

ing of th{e Hawaii Supreme] Court.” Sandin v. Conner, 115

S. Ct. 2293, 2300 n.5 (1995). At worst, Nansay attacks

“abandonment” of a particular “methodology” — a pro-

cess that is well accepted in the law when new cases

esans

indicate that the Court “has strayed from the real con-

cerns” of past cases. Id. at 2300 & n.5. Cf. Lucas, 505 U.S.

at 1031 (noting “changed circumstances or new knowl-

edge may [even] make what was previously permissible

no longer so”).

Even if this Court might be prepared some day to )

recognize the doctrine of “judicial taking” set out in

Justice Stewart’s concurrence in Hughes v. Washington, 389

U.S. 290, 296 (1967) (Stewart, J., concurring), there are no

good reasons to do so in this case. Here, the Hawaii

Supreme Court was well aware of Nansay’s theory, and

held that the mere “recognition” of certain general princi-

ples governing gathering claims did not, in and of itself,

amount to a “judicial taking.” PASH II, 79 Haw. at 451,

903 P.2d at 1272. This Court’s Rule 10 admonishes that

“certiorari is rarely granted when the asserted error con-

sists of . . . misapplication of a properly stated rule of

law.” Under Nansay’s own theory, only such a “misap-

plication” is at issue.

This Court should also be reluctant to grant review

given the harm that could be inflicted by an uninformed

resolution of the “judicial taking” issue. As this Court

said 65 years ago:

The process of trial ana 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 guarantees, even

though parties may have acted to their prejudice

on the faith of the earlier decisions.

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 681 n.8 (1930).

Judicial “legislation” was a concept foreign to the

Framers, who would have viewed it odd that courts

Licsiiteiaesiancsieaniaiimeiiiieaiueasaeaeaiiiiiiilal

could be held to “take” property by construing statutes

upon which the system of property came into being. See

Linkletter v. Walker, 381 U.S. 618, 622-23 (1965). Judicial

decisions in property law, as elsewhere, are presumed to

“operate retrospectively.” United States v. Security Indus-

trial Bank, 459 U.S. 70, 79 (1982). The protection against

judicial changes in property law is not a “just compensa-

tion” suit, but title insurance. See Brown, Insured Legal

Opinions, 1961 Ins. L.J. 712. “Mistaken applications of the

law are inevitable, but no principle of constitutional law

requires compensation for every mistake.” In re Chicago,

Milwaukee, St. Paul & Pacific Railway, 799 F.2d 317, 327

(7th Cir. 1986). See also Corporation of the Presiding Bishop v.

Hodel, 637 F. Supp. 1398, 1407 (D.D.C. 1986), aff'd, 830 F.2d

374 (D.C. Cir. 1987).

To date, although sporadic mention has been made in

court decisions of the “judicial taking” theory, no federal

court of appeals or state court of last resort has ever

ultimately invalidated a state court decision as a “judicial

taking.” There is thus no conflict even in approach

between the decision below and any of tne appellate

courts that have spoken on this issue. That fact demon-

strates that, in general, and in the instant case, state

judges have taken seriously their duty to “enforce the

supreme law of the land.” See Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 240 & n.1 (1985). If this Court does

address the “judicial taking” issue anew at the behest of a

private litigant who has lost a property case, it should

only be where the aggrieved landowner has presented a

truly compelling argument that review will result in the

correction of the state court. Nansay has failed to do so,

and, in the end, its petition both flies in the face of

precepts of federalism, and wrongly “denigrates the

judges who serve on the state courts.” Id.6

Hawaii's decisions concerning Hawaiian land tenure have been

“successfully challenged” urder the “judicial takings” theory

CONCLUSION

For the reasons above, the petition should be denied.

Dated: Honolulu, Hawaii, March 21, 1996.

Marcery S. BRONSTER

Attorney General

State of Hawaii

STEVEN S. MICHAELS"

Deputy Attorney General

State of Hawaii

*Counsel of Record

Department of the

Attorney General

425 Queen Street

Honolulu, Hawai'i °6813

(808) 586-1383

Counsel for the

State of Hawaii

presented in this case. Pet. at 22 n.12. This statement is in part

totally false, and in part a half truth. The judgment in Robinson v.

Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977), was ultimately

vacated by this Court, see 477 U.S. 902 (1986), and reversed by

the Ninth Circuit, see 887 F.2d 215 (9th Cir. 1989), attorneys’ fee

award also reversed, 933 F.2d 781 (9th Cir. 1991). Although the

District Court’s judgment in Sotomura v. County of Hawaii, 460 F.

Supp. 473 (D. Haw. 1978), was not reversed or vacated, that

result is attributable to the defendants’ failure to timely appeal.

679 F.2d 152 (9th Cir. 1982). Petitioner does not contend that

Sotomura is preclusive of the issue here, nor could it be. See

United States v. Mendoza, 464 U.S. 154 (1984).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.