Sand Comes and Sand Goes – But Who Owns It?

Accretion. Does a property owner have an intangible right to future accretion or merely the right to the land when it accretes? This question and more in a Hawaii case now pending before the U.S. Supreme Court. The case is Maunalua Bay Beach Ohana 28 v. Hawaii case. My partner Robert Thomas posted this case at his blog, here. Petitioner's question presented is: For nearly 115 years, littoral owners in Hawai`i held riparian rights to accretion and direct ocean access because their oceanward boundaries moved as beaches accreted and eroded. In 2003, Hawai`i adopted a statute – Act 73 – that, effective immediately, changed both existing and future oceanfront accretions throughout the state into "public lands." Act 73 fixed oceanfront boundaries forever and, as a result, littoral owners lost both existing accretion and their riparian rights. In 2010, the Hawai`i Intermediate Court of Appeals ruled that the State owed just compensation only for accretion that existed in 2003. However, it held riparian rights to a shoreline boundary and future accretion could be taken for free because littoral owners' riparian rights were only contingent interests in future accretion so they were not "property" for takings purposes. That holding directly conflicts with this Court's decisions regarding the nature of riparian rights. The question presented here is: Since this Court has recognized riparian rights are vested property interests, can Hawai`i take those rights, including future accretion, without paying just compensation? Our amicus brief, filed on behalf of Land Use Research Foundation of Hawaii, posits a different question: In 2003, the Hawaii legislature adopted Act 73, which declared that the private right to own accretion on beachfront parcels was public property. The statute did not provide for compensation, and upon challenge by the Petitioners, a state trial court invalidated Act 73 as a regulatory taking of the right to accretion. The Intermediate Court of Appeals of Hawaii partially affirmed, concluding that Act 73 was a taking of accreted land in existence in 2003 when the Act became effective. It also concluded, however, that the statute was not a taking of "future accretion," or land that might be accreted after 2003, because there was no certainty that accretion would occur, and littoral owners' right to accretion was therefore not "vested." The court concluded the legislature was free to recharacterize the private right to accretion as state property without compensation because Petitioners never owned it. In other words, the right to accretion is not "property" as that term is used in the Fifth and Fourteenth Amendments. The question presented is whether the right to accretion is property within the meaning of the Fifth and Fourteenth Amendments, and therefore protected from ipse dixit redefinition into public property. The Petition is here. Our Brief is here. Pacific Legal Foundation/Cato Institute's brief is here. The State of Hawaii declined to submit an opposition to the Petition.

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