IN THE SUPREME COURT OF TH! UNITED STATES of Kawali and a'R concerning the latterl, diverllonl. Th, Territory, al th' owner of the Ahupuaa of Ranapepe, claimed that 1t va. the owner

•

No . 85-406

IN THE SUPREME COURT OF TH! UNITED STATES

OCTOaER TE~, 1985

GEORG! R. ARIYOSBI, !T AL., PETITIONeRS

v.

SE~WYN A. ROBINSON, !T AL.

ON PETITION rOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT or APPEALS

FOR TH! NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

•

CHARLES FlU £0 Solicitor General

F. HENRY HABICHT II assistant Ac=ar noy General

LAWRENC~ G. WA:LACE Deputy Sol :citor Gene~a:

EDWIS s . KX!:~~L!R

Assistant :0 t~e Sc: ~ ci~~= Ge:" .• :a!.

?!:!~ ~ . 5:EE~:AND , JR. ANN~ S. A:'l'I'"

.~:::n neYI

J.pa::~e~: ~~ :UI::C. W4.~,~c:~n. 5.e. 205 30 1202 ) 633-2217

' J ' .

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

QUESTIONS PRIS!NTED

1. Whether. 1913 d.ci.1on of th. supreme Court ot Sawall

con.tituted final 90ve,nmental Iction that could be I "taking" of

r.apon4ent.' rivhtl to waters ot • river 1n that State,

notwithltand1ng a sub.equent decision of the Supreme Court ot

Sawaii that contemplates further proceeding. in Itat. court on

mattera pertaining to respond.n~8- right to divlrt water from the

river.

2. Wheth.r the rejection by the Supreme Court ot lawali ot

re.pondent.- petition. for rehearln9, which contended that that

court'. 1t73 decision re.ulted in a takin9 ot reapondentl'

property without just compensation or due proce •• , con.tituted .•

final aetermination of tne federal claim. that cannot be reviewed

in the ••• eparate proceedin91 in federal court.

3. Whether tne Hawali Supreme Court's rejection of, Of

eailur. to address, re&pondentl' taking claim at the time of the

c~nai4.ration of their rehearin9 petitions deprived them of due

proce •• of law, on the 9round that respondents were not afforded

an adequate opportunity to be heard on the tAking question.

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IW THE SUPREME COURT OF THE UNITED STATtS

OCTOBER TERM, 1985

No. 85-406

GEORGE R. ARI¥OiHI, £T ~., PETITIONERS

Y.

SE~WYN A. ROBINSON, ET ~.

ON PETITION FOR A WRIT OF CERTIO~I TO THE UNITED STATES COURT OF APP&ALS

FOR THE NINTH CIRCUIT

BRIEr FOR THE UNITED STATES AS AMICUS CURIAE

Thi, bri,f is lubmitted in response to the Court'.

invitation to the Solicitor General to axpre •• the views of the

United State ••

STATEMENT

Thia ca.e involves the definition of rights to thl use of

the water. of the Hanapepe River on the Island of Kauai in

Hawaii. The court of appeals held that the deciaion of the

Supreme Court of Ha~a,: ir. ~cBrvd. Sugar Co. v. Robinlon, 54 Ha~.

174, 504 P.2d 1380 (1973), appeal di.milsed and Clrt. denied,

417 U.S. 962 (1974), dep. i ved re.pondents of · vested" water

.ights e.tabl i . heci by pr~~r :aw and thereby re.~ lt ed in an

uncon.titutional taking of .espondents' property without the

payment ot just compensat i on. In our view, however, the

.ub"qulnt deci.ion by the Supreme Court of Hawaii on que.tionl

certified to i t by the court below (Pet. App. 14a-55a) makes

clear that the decision in McBryde wa. not a final determination ~~~~~~~~==~


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of relpondentl' right. that can give rile to a ripe taking claim

under William County Regional Planning Comm'n v. Ham i lton Sank of

Johnlon City, No. 84-4 (June 27, 1985).

1. the watershed of the Hanapepe Ri ver il about 15 miles

10n9 and from two to five mile. Wide. the north.rly portion of

the vaterlhed reachel up toward Mount Naialeale, where the annual

rainfall of 400 to SOO inches il among the heavi.lt in the

world. the lower portion, by contralt, r.ceive. relativ.ly

little r.intall. About halfway down the waterlhed, the Kou1a and

Manuahi Itream. join to form the Hanap.pe Ri ver. The volu.e of

water in the waterlhed generally ranges between 30 Ind 145

million gallonl per day (qpd) . Pet . App. 2001. 202a, 216a.

In the Great Mahe l e or diviaion of Hawaiian land, in the

mid-Nineteenth Century ( ••• Kaiser Aetna Y. United States.

444 U.S. 164, 166-167 (1979)). eh. Ahupuaa of Hanapepe. __ I

roughly equ i va l ent to the watershed of the Hanapepe River and ita

tributari.s, wa. des i gnated as crown land. Pet. App. 200a. The

portion of the water . hed above the confluence of the Manuahi and

KOula i s compr i s.d of lesser division. of l and, ~ nown a. the i 1i .

kupono of Manuahi And Ko ula. wh i Ch are now owned by r •• pondent.

Robinlon, et al. R •• pondent McBryde Sugar Co. owns land in the

Ahupuaa of Hanapepe below the confluence of · the MAnuAhi and Koula

(~. at 201a . 307a ) . The Robinson •• McBryde And the other

r.lpondenta (knOwn as t he sma l l owners ) , as we l l al t he State,

are luecessors i n interest t o the owne rs of .~c i e n t ta:o p!~ t ! i r.

Kahe l e (id. At 224a ) .

2 . geg ~nning in le9~ , Ga y a nd Robin son (G'R ) , bui lt a dam

and a system of di tc hes ~ o de: : v e~ water fr om t he Koula ItreAm " 0

land. out. ide the Hanapepe Va ll ey 1n the ~akaweli watershed (Pet .

App. 203a-20ea). In the lAte 1920 ' s, a dispute aro •• between the

I An ahupuaa i s the l ArgeSt di vi sion of land under the Aneient KiWAii system. See Ka i ser Aetna . 444 U.S. at 167.


Territory of Kawali and a'R concerning the latter l, diverllonl.

Th, Territory, al th' owner of the Ahupuaa of Ranapepe, claimed

that 1t va. the owner of all or part of the aurplul wat.r. of the

atre .. , and' lt .ought an injunction barring Gil from dlvertin9

vater 1n dero;aeion of that rl;ht. The patti', Itlpulated to the

exl.tence or "normal daily surplus of water." 1n the lanapep ••

Territory v. GaY, 31 Baw. 376, 317, 381 (1'30), .ff'd, 52 r.2d

35' (9th Cir.), cert. denied, 284 u.s. S77 (1931).

The Supre •• Court of the Territory diamil •• d the Territory's

bill 1n equity, holding that O'R, .1 owner of the 111 kupono,o!

Koul., w •• the owner of the "normal" lurplul vatere (tho •• not

n.eded to •• ti.fy other ri;htl) arilln; on that land. ~. at

388. The Chief Justice would have 90ne further and included

"storm and fre.het" Iurplua water under this rule, overfulln; the

hOldinCJ in Carter Y. Territorj', 24 Ha",. 41 (1'17), that ".term

and fr •• het" surplus water is to be apportioned aecordlnq to the

doctrine of riparian rights. 31 Haw. at 403. A di •• ent1n9

jUltice wa. of the view that both "normal tl and "Itora and

fr •• het" surplul water should ba governed by the 40ctrlne of

riparian ri9hta ~nder the rationale of the Carter deciaien. ~.

at 408-417. The Court of App.als for the Ninth Circuit declined

to di.turb the jUQ9ment of the supreme Court of the Territory on

th.!e que.tions of local property law, 52 F.2d 35' (1931), and

thi1 court ~enied certiorari, 284 U.S. 657 (1931).

3... In the period from 1945 to 1949, G,a and its le.see,

r.lpendent Olokele Sugar Co., Ltd., constructed new del~very

works that increased :he amount of water aiR was able to divert'

trom the Hanapepe watershed (Pee. App. 209.,. This diminished

the amount of wate: availab~e to Mc8ryde. Accordinqly, in 1959,

McBryde commenced An action a9ainat G,a in .tate court, se.kin;

an adjudication that it had appurtenant, prescriptive or rip.rian

right. to 11 ~illion gpd from the Hanapepe and an injunction

barrin9 GIR from diverting water in a manner that interfered with


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M~Bryd.'. right. (Pet. App. 316a·317.). The State and the small

owner. allo app.ared •• defendant. (~. at 197a-198.).

!he trial court quantified the appurtenant water ri9ht. of

.ach of the parti •• tor ancient taro lAndl. __ I It further held

that G'. va. the owner of !!! of the aurplul water f1owin9 in the

loula and Manuahi .tre.ma. The court recognized that the Supreme

Court of the Territory had held 1n Cartar Y. TerritorY that

It,torm and fr •• het" lurplu8 water va. to be apportioned accordin9

to the doctrine of riparian rl;ht, (Pet. App. 250a) and that the

lub,.quant decision in Territory v. Q~ held only that the

"normal't lurp1uI water be1onged to the owner ot the land on whlct\

the water aro •• (pet. App. 2504-251a). Howevlt, the court

que.tloned whether Carter was ".till the law of Rawaii" anc!

believed that Gay "lnv1te[d} reconsideratlon of the [Carter]

rule- (Pet. App. 251&-252.). __ I

b. On January 19, 19'3, the Supreme Court of Rawaii

Affirmed the award or appurtenant tights for ancient taro lands

(1a. at 175a-1784), although it held that thoae right. apply only

to the lind to which they are appurtenant and do not extend to

the transportation of water to another watersh.d (~. at 178a).

t~e Supreme Court rever •• d the judqment of the trial court

in .11 oth.r respects. It first rejected the trial court'.

hold1n9 that G&R, as owner of i115 of Kou.a an~ Manuahi, owned

all of the .~rp1us water that arose on that land (pet. App. 167a-

1741). Quoting the principles adcpted by t~e ~.nd Commission and

__ I ~h. court fQund the followi~q acres o~ ancient taro lands and corr.sponding water ri9hts: McBryee (9S.21 acres: 4,91S,~OO ;pd): the State (83.27 acres: 4,167,650 9pd),~ t~e small owners (29.11 acrea: l,456,950 9pa), G,R, for lands balow Koula and MAnu.hi (30.63 acre.; l,533,050 9pd). Pet. App. 2181-233a, 246a-250a, 25'a-260a.

I The only exception to the trial court'. awat~ of all surplus water to a •• was tor 2,084,600 qpd that the eourt concluded MCBry~e had acquired as 49ain.t a'R by way of pr •• cr1ption (id. at 214a-215a, 246., 253.-257.,. ~he Hawaii Supreme Court -r.verled that award (id. at 186a-l87a), and it i. not direce:y at i.au. ~.r. (.e. !i .• r-10ea-109a, 266.·267a).


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approved by the 189il1ature in 1846, the Supreme Court held that

at th. tim. of the Great Mahele, the Kin; did not convey any of

hit lover'igft ri;htl, includlnv the ri9ht Ulto enforce the

uaufruct of landa for the common c;ood III (~. at 113a). ..caule

the right to water i. one of the mo.t important ~.ufruct., the

ri9ht to water WI. re.erved Etfor the people of Hawail tor their

cCXIII.On 900d in .11 the land grants. II ..lliJ!. Accordingly, the

Supte.e Court declared that the State il the owner ot the wat.r

1n tbe loula and Manuahi atre ... and Hanapepe River (!!. at

17.1). The Suprema Court recogni.ed that thil conclu.lon v ••

lncoft.iltent with Territory v. Gay, at 1 •• lt •• regard. dnormal"

.urplul water (Pet. App. 167a). But it concluded that the

relevant atatementa in two of the early deCisions upon whicK the

Territorl.l Supreme Court had relied in GAY were dicta and that

Carter v. Territory, althou9h applyiftq riparian principle. only

to ".torm and freshet" surplus water, was broader 1n It.

r.asoning (Pet. App. 168a-169a). The court also overruled Carter

v. TerritorY, holding that 'tstorm and fr •• het" s1.lrplul watet

1ik.wi •• was re.erved to the State (li- at 181.).

The Supreme Court further held that McBryde, the State, c,a, and other owners of land in the Hana~epe valley have riparian

water ri9ht. under an 1850 Act of the Hawaiian legislature, which

provid •• that U[tJhe people shall alao have a ri9ht to drlnkinq

water, and running ~ater, and the right of wayll (Pet. App. 179a-

180a' n.l?). ~. at 178a-l8Sa. The court expl.ined that these

owners are permitted to use the ~ater flowing 1n the rlvet

without pre~udicin9 the riqhts of others, al~~ou9h this riqht

appertain. only to land adjoining the water course (~. at lBSa).

Finally, the Supreme Court Qoncluded that the j~d9ment in

territory v. Gay wa. tes judicata as bltween the Seate and GIR,

thl only partie. to that c •• e (~. at 164&·16aa). Howevet, the

C~urt observ.d that the hcldinq in ~.rtitoty v. Gay was ba.ed

only on an ••• umption, not a findin9, that there actually would


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be "normal" lurplul waterl. beeaul. therl had been no

determination of the luperior ri;htl of other I in the Ranapep.

Valley. In view of it. recognition in Mc8ryde of riparian rights

to the flow of water without subltantial diminution. the court

found that there 1a no "normal" lurplul to whiCh O'R would be

entitled under Territory v. Gay (Pet . App. 186a-187a).

c. McBrydl, G,R. and the small ownera petltioned tor

rehearlng. challeniini the Supreme Court ' s Itate-law ruling. and

cont.nding that the decision violated their right. under the JUlt

Compen.ation and DUI Procel. Clause • • See. ~ •• Pet. App. 353a-

3811. After lupplemental brietini on two Itate-law il,ue. Ind

oral argument, the Supreme Court. with two dilsents (~. at 113a-

162a). reaffirmed its orillin&! judgment (id. at 112a-113a). Thie

Court deni.d review. 417 U.S. 962, 976.

4.a, While re.pondentl' appeal and certiorari petitions

werl pending in this Court. the Robinson r •• pondentl commenced -the prelent action in the United ~tat.s Diltrict Court for the

District of Hawaii (Pet, App. 271a-276&), MC!ryde, the SMall

owners, and others inte~venad as plain tiffs. The complaint

alleged that the dec i sion in McBryde was "directly contrary' to

the settled law of Hawaii a nd violated the Due Process and Juat

compen.ation Clauses of the fifth and Fourteeoth Amendments. the

distr i ct court rendered a cec i sion in favor of respondenes on

October 26. 1977 (id . at 56a-l10a ). concludlr.g after an extensive

analYlrs of the Hawaii Sup reme Court prec,ceMs (~ , at 64&-75. )

that the McBryde decision constituted an abrupt Change in the law

(~. at 1074). The court held that relponde".t s' ownerohip of

surplu. waters and their right to transport wa:er out of the

watershed und=r pre-McSryde ~aw were "v,st,d" property r ight s and

thet enforcement of the decision in Mciryde would r •• ult in an

unconltitutional taKing of tho.e rights. The court accordingly

enjoined petitioners from enforcing the judgment in Mc!ryde (id .

ae 266a-267a).


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b. On petitionerl' appeal, the court of appeals certified

lix qu •• tioa. to the Supreme Court of Sawaii eoncerning "the

proper interpretation" of the MeBryde alci.ion ('It. App. 414a-

415&). Atter brle!in9 and oral arqument, the supreme Court

i"uld an opinion explaining that the McBryde ho14in9 that the

Itate ownl the lurplus water in the Sanapepe River did not refer

to ·owner.hip 1n the corporeal .ena. where tn. State may do with

the property a. it pleaael" (Pet. App. 51a). lnatead, it

contemplated only the State t• "retention of • * • authority to

•• aure the continued existence and ben,fiel.1 application of the

re.oure. for the common good" (!2!a.) -- ~., • public tru.t .1 reflected in the 1850 State statute declaring the right. of the

people to "runninq watar" (~. at 52a-54&).

The Supreme Court a110 Itr.lsed tbat by reco9nil1n9 riparian

rl;htl and llmitin9 water ri9hts generally to the land to which

they are appurtenant, McBryde "did not actually en~oift or

•• plicitly prohibit the diversion of water from the water.h.d~

(Pet. App. 194). Instead, McBryde merely stated that the

"private ulufruetory intere,ts" in water were "net so broad as to

include any inherent enforceable ri9ht to transmit water" beyend

the appurtenant lands (~). Accordin91y, McBryde was not

"conclu81ve of the citcumstanc •• 11 in which a tranlfer might be

enjoined, especially since such an action would be subject to the

equitable doctrines 0: estoppel, laches, an~ public use (~. At

19a-20a). The court made cleat in this regard that "diversions

will b. r •• trained only after a caref~l assessment of the

intere.ts and circumsta~ceg invo:ved indicates a need for

restraint" (!at at 20a-21a) t

With re5peet to the tes judicata consequences at MCBryde in

any such action to enjoin diversion. by respondents, the Supreme

Court first held that "MCBryde in its current posture has no bar

and merger effect," because no fin.l judCJlftent has yet been

entered in that ca •• (Pet. App. 23a). Similarly, the court held


• 8 •

that "i,.ue preclulion would be confined to the quantification of

appurtenant "ater ri9htl [for anci.nt taro land.)," becaule only

that portion of the .tate trial court'. judgment wa' affirmed in

IIcllry4. (~, at 23a·2b). Th. cOllrt acknowlld~ed that Mceryde

al.o had confirmed the .xiltenee of riparian ri9htl, delineated

limitation, on the transportation of water/ and declared the

State to be the owner of lurplll' wat.r (id. at 23a) . lIut the ••

rulinll" the court explained, would only be the "law of the ca.e"

in the "continllation of the ca.e at the trial level" (~ . at

24a). Moreover, the cOllrt It.ted th.t it would b. n.c •••• ry,

'prior to any final jlld9ment re.pectinq the diltribution of the

wateu of the Hanapepe," to <eeolve certain "tactllal and le .. al

iI,ue.," including, "molt .ignificantly[,) the natllte and Icope

of .ny remedie. to be aftorded the partiel " (id, at 24.-254).

The Supreme COllrt likewise held that MCBryde would not preclude

an independent action by respondent. in state court with respect

to i.,ue. left unresolved by the MCBryde opinion, including the

application of the principles of McBryde to "exiatin9 diversions"

(~. at 42a). The cOllrt strea.ed that McBr vde di~ not determine

whether the cessation of any given diversion would constitute a

"takin;" (~.) .

Finally, the Supreme Court ~dvis~d the court of appeals that

state law prior to McBryde was unsettled and confusin9 (Pet. App.

42.·50.). In its view, only three cases addressed "Iurplus"

wat.rs in the 125 years between :he Great Ma hele and McBrvde : in

each, surplus water was : reated diffe:ent l y, and "in none of them

did the court even attempt to cle~rly def~ne or quantify the

nature of this riQht" ( ~, It 47a-481 ) . The court ~lso exp:~ined

that thee. prior ca.es recognized that "surpl us" water wa ••

,e.idull category/ to which the und.fined interests of other

u.er. were ,uperlor (~. ~t 49a).

In • 11m , the Supreme Court interpreted its Mc8ryde decision

•• a rea.eertion of the soverei9n authority to "enforee the


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UlufrUc:t. of the h.nd for the common 900d" (Pet. App. 54a) a"d a

rejection of re.pondenta' .. aertion of "abaolut. and exclulive"

control over the uae of waters 1n the waterahed (id. It 551).

The McBryde opinion. howaver. wa. only the beqinnin9 of "a

naeu.ilry definition of the paramateu of the State'. luthority."

which would proceed on a case-by-ca.e bali. (~. at 55a) .

c. After the Supreme Court of Hawaii answered the certified

que.tiona. the court of appeal, nev.rtheless held that the

dleiaion in McBryde resulted in an unconatitutional taking of

rlapondlnte' property (Pet. App. la-13a). The court of appeals

found that :eapond.nte had "vest.d" property ri9htl to divert

water becauae they had relied on the decree in Territory v Cay

and conatructed diveraion works (id. at lla. 121). and it hlld

that McBrYc:\e could not "divest righta that were vested before the

court announced the new law" (id. at 12a). Although the court of

app.als referred to the answers to the cert i fiec:\ questions (!£. at 5a). it did not addreas the substance of thOle answers.

including the avai l ability of means by which respondents could

conteat any attempt by the State to ha l t diversions. However.

becaule petitioners had taken no steps to i nterfere with

re.pondents' diversions. the court of appea l . vacated the

injunction that barred petitioners from seeki ng to enterce the

decision in McBryde and affirmed on l y the district court'.

declaratory j udgment (!£. at 13a) .

ARCUMENT

Th.re are lur ki ng in this cale a number of ditficult and

po tentially importan~ ; uee·ions concer ni ng ( i ) the r'I~.cti v ~

ro l es of the state and f. de~al courts i n t h~ ascerta i nment and

.nforcement of property rights created by state law, and (i i ) t he

authority of a federal di strict court to entertain a s uit ra i sing

iasu •• of federa l law that are intertwined with questions that

pr.viously wert diaposed of by the hi9heat court ot the State.

The aup.rimposition of the,e procedural que.tions on evolving and

. '


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novel prin~iple. ot Hawaiian water law make. this ca.e one ot

r extraordinary complaxity J Sut al w • •• e it. th.r. i. no oeca.ion

tor the Court to .xplor. tho.e i •• ue. h.re. In it. current •

po.tur~. this ea.e raise. on. legal illue that oVlrshadowl all

Il.e and lugg •• ts a .imple and .traighttorward di.po.ition.

Th. opinion of the Supr~me Court of Hawaii in r •• pon •• to

the qu.,tion. certified to it by th~ court of appeal. mak., clear

that the McBryde deci.ion did not tinally determine r •• pondent.'

entitlem.nt under Itate law to divert water from the Hanapepe

River and it. tributarie.. Th. deci.ion in McBryde therefore was

not the lott of "final" action by the State that could 9ive dee

to a ripe takinq claim under this Court'; decision in William.on

County algional Planning Comm'n v. Hamilton Bank. No. 84-4 (June

27. 1~85). Becaul. the judgment of the court of appeal • . -con.titute. a substantial intruaion into the state court

proceeding. in McBryde and may- inhi bi t the d~P"'8A~ of at ate

water law more generally. we sU9gest that the Court should qrant

the petition for a writ of certiorari. vacate the judgm.nt, and

rem.nd the ca.e to the court of appeals tor further con.ideration

in light of William.on County.

1. In Willamaon county, the Court held that a claim that a

taking of property hIe been effec:ed by zoning regulations is not

ripe until the responsible administrative agency "has arrived at

a final, definitive position regarding how it will apply the

rlqulations at issue to the pArticular :and in que&tion." Slip

op. 17. The Court found this Einality requirement to be

"compelled by the very nature of the inquiry required by the Just

Compensation Clause" (ibid.), under which the Court h •• engaged

in "ad hoc, factual inquir'" into the circumstanee. of eaeh

particular ca.e." Connolly v. Pension 8ene~lt Guaranty Corp.,

No. 84-1555 (P'tb. 26. 1986), slip op. 13. To &asht in this

as •••• m.nt. the Court typically considers. inter ali •• the

-.conomic impact of the challenged action" and "th ... xe .. nt to


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which it int.rfere. with rea.onabl. inveltment-blcked

expectation •• " Williamson County, slip op. 17: Connolly, .lip

op. 13-15. "Thole factorl .imply cannot be ev~luat.d" until the

adainiltrative aQency "has arrived at a d.finitiv. POlition on

the i •• u. that inflict. an actual concrete injury" (.lip op. 17,

l~). The Court further held in William.on County that in order

for the finality requirement to be satisfied, the landown.r mu.t

invoke available procedure. for obtainin9 a varianc., which mi9ht

.nable him to d.velop his property to the extent n.ce.lary to

obviate any "takinQ" claim. Slip op. 14-17. Accord, ~ v,

Virginia Surtace Mining, R.clamation Ass'n, 452 0.5. 254, 297

(1981)1 Awin. v. Tiburon, 447 U.S. 255. 260 (1980): ',nn C.ntral

Tran'portation Corp. v. N.w York City, 438 u.s. 104, 136-137

(1918).

Thi. ca.e involves an alleged taking not ~. a result of the

action of a state administrative agency, as in Williamlon County,

but al the r.sult of a deci.ion rendered by a state court that

a •• ert.dly worked a radical chanQe in state property law and

up.et settled expectations. But this distinction doe. not

undermine the applic~bility of the finaliey requirement of

William.on County and related cases. For where the State has

al.iined to its courts the responsibility for defining and

re9ulatinQ property rights. __ I it i5 only after the court. have

taken dltinitive action with respect to particular rights that

the Iconomic impact of the judicially fashioned rule. and the

ext.nt of their inte~ference with reasonabie investment-bac,ed

expectations cou l d De considered by this court on dirlct view or

by a tedlral distric< cc"rt considering a taking claim !n _

I.parate luit (if the :at:er would not be barrld Dy ohe doc:~'n.

~I Thl .tate trial judge in McBryde Ixerciled authority vested 1n him al commis.ioner of private ways and Water rights undlr 55 234-30 to 234-36 of the Rlvised L.ws of Hawaii (1955). Sle P.t. App. 197 •.

. . University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

- 12 -

of Rooker v. ridelity Trust Co., 263 U.S. 413 (1923), discus.ed

at note ,~).

Application of the finality rule in thi. ca.e allO furthera

the principlel of comity that underlie the requirement that

federal courts ab.tain from adjudicatin9 feder~l qUlstions th~t

ariel out of and could be prelented in on90in9 proceedinql in

Itate court. See, ~., Hawaii Houling Authority v. Midkiff, 467

O.S. 229, 237-239 (1984); Middlesex Ethic. Committee v. Garden

Stat. Bar AII'n, 457 O.S. 423, 432-437 (1982); Giblon v.

Berryhill, 411 U.S. 564, 577 (1973). The interut in comity is

at itl zenith where, a. here, the premile of the taking claim is

that a Itate court'. interpretation or application of judicially

falhioned principles of state law affecting property intereltl

wal alllgedly Irroneoua and a sharp departure from prior law. In

luch a cale, the state courts should have every opportunity,

before rendering a final judgment, to correct or explain their

rulingl on questions of state law, to consider any claim that

thOle .tat.-l~w rulings would give rise to a taking of property

in certai n circumstances (lee Pet. App. 42a), and otherwi.e to

accommodate competing interests. Premature intervention in

thil procel' by the federal courts on a taking theory could have

t~h~e~u~n~t~o:w:.~r:d~e~f~f~.~c~t~o~f~f~r~e~e~Z~i~n~~t~h~e~o~v~o~l ~u~i~onn-2o~f~~~~aw, ct. l'rune'iard Shopping Center v. Robins, 447 U.S. 74, 82-85 (1980);

id. at 92-93 (Mushall, J" concurrinQ); ~ v. Illinois, 94

U.S. 113 (1877).

2. When ~he instant suit wa. commenced in rederal dist:ic:

court in 1974, it might have appeared :hat :he tinality

requirement of Williamson County was satisfied. The decision of

the Supreme Court of Hawaii in ~cBrvde had d.c~.rld the State :0

be the owner of all I"rplus water in the Han.pepe wlt."hed and

.eemed to bar the holders of appurtenant or riparian water rights

from u1in9 water on otho: lands. Moreover, althOUgh G.R had been

held in Territory v. Gay to be the owner of all "norItl41" .urplus

. ' University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

I I . .

- 13 -

water. thl rlcoinition of riparian riihts In MCBrydl apparently

11ft no watlr in that relidual cateiory. Nor could prelcrlptive

riqhtl bl rlcognl'ld for the blnefit of re.pondent MCBry~e

blcaull pr.lcription does not run Ig.inlt thl State. SI •

• lupra. Standini alone. thlse ru11ng' miiht have

blln undlr.tood to be a conclusive determination under .tatl law

of the naturl and extent of respondent" riqht' to divert water

from thl lanaplpl and its tributaril. for ule both within and

without the watlrlhed. In that event. the finality r.quirlment

of "111ia •• on County and relatad ca.el would have beln

,aeiltild.

3.1. The Inawers to the clrtified questions renderld by the

Hawaii Supreme Court in 1982. however. dilpellld whatevlr air of

finality had surrounded the dlci.10n in Mciryde. Thol. answerl,

in the form of a published opinion rendlred after briefing and

orll argument by the parties, must be reilrded a. the dilpolitive

Ixpolition of the meaning and con.equances of the McBryde

dlCilion II a matter of Itlte law. Indeed, the court of appea11'

Ixpre.1 purpose in making thl certification was to obtain an

authoritative construction of the McBryde opinion (see Pet, App.

414a). "which might avoid in whole or in part the nece •• ity for

fed.ral conlt1tutiona1 ad j udication or at least materially change

thl nature of the prob l em." Bellotti v. ~, 428 U.S, 132. 147

(1976), quoting Harriso~ v. NAACP, 360 U,S, 167, 177 (1959). ¥H

when it received the an.werl to the questions, the court of

applal. failed to appreciate their signiticanc. to the "taking"

inquiry, l and inltead essent,ally igno:ed them ) For example, the

court of appeals failed even to mention, much lQSS rebut, tho

Eawaii Supreme Court ' S explanat i on, qiv.n in dir.ct r.lpcnle to

on. of the court of appea •• ' questions, thlt the law of Rawaii

with r.gard to the ownership of lurplus water WI. uncllar prior

to MCiryde (Pet. App . 44a-51a). __ 1 But the court of appeals

nev.rthellS8 hlld that respondent. had "vested" right. bas.d on


- l4 -

stat. law prior to McBryde (l2 ' at 10a-12a). __ 1

__ I Th. courts b.low appear to have applied an ellentially de novo Itandard of revi.w to th. state court'. determination of the cont.nt of .tat. property law (.ee Pet. App. 98a-103a). We b.li.ve tnat approaoh fails to accord .ufficient d.ferenc. to the .tate court. Th. court of app.als reli.d on the concurrinq opinion of JUltic. Stewart in Hughes v. Washington, 389 U.S. 290. 296-297 (1967). which .tated that "wheth.r (. stat. court) deoi.ion • • • worked an unpredictable change in state law •• • inevitably pr •• ente a federal question for the determination of thi. Court." But that .tatement did not mean that f.deral courts may fr •• ly impo.e their own viewl on the oontent of .tate property law. Indeed. JUltice St.wart would have re.tricted the .cope of the fed.ral court'. inquiry to whither the Itate court'. pronouncements w.re "r.a.onable." Id. at 296. The inquiry has been de.cribed in a r.lat.d cont.xt-'. wheth.r the .tate d.oision ha. "fair support" or a "fair and lub.tantial basia." D.moreAt v. City lank Co., 321 O. S. 36, 42-43 (1944). If so, th. hderal court will not "substitute it. own vi.w of what .hould b. deemed the b.tter rule. for that of the .tate court." Id. at 42.

1 Th. court of app.al. identified the actioni that rendered tEe water rights "vested" as the dllcree in Territory v. Gay (Pet. App. 12&) and the con.truction of diversion work. and pa.t uae of water (id. at l1a). The court apparently believed that any disturbance of those "vested" rights would of necessity .ffect an unconstitutional taking. In our view. this formulation of the circumstance. in which a takinq of respondents' a.lerted rights in water would occur is too simplistic. at l ea.t without a much firmer foundation in the law of Hawaii than is exhibited by the court'. opinion. Cf. Wil liamson County •• l i p op . 18-19 n.12.

We do not di.pute that the judgment of a court may ve.t a property right under governing law -- as. for example, in the gen.ral adjudioations that are conducted in many western States to a.ttle al" of the rights to the u.e of the waters of a particular stream. See Nevada v. united States. 463 U.S. 110,

(

130-134. 138-141 (198 3) . However. teu !tory v. Gat was not a

(

general adjudication of all rights to the waters 0 the Hanapepe River. and it did even not quant i fy the re'geetive rights of tne Territory and G'R. the oniy 9art i e. to the case. Although the judgment in Territory v. Gay nevertheless has a certain res judicata effect a. between those parties (see ?at. App. 29a-)'a). it i. not clear, as a matter of state law, tha: :he judgmer.t actually "vested" any prope:ty r~9ht5 in G,R. ~~ch :es. in t~e other respondent. to tr.!. case. Simila: ly . a:thougn tne buclc! ~ g of diversion works a~d the benef~cial app: ic a::o~ of ~a:e: ~a y oe important events in t. he "vesti:1.9" of water !"i;hts in thOl e St.a:es that r.cogniz~ :h@ doc:ri~e of p:~or appr ~pr i. t ~on (S@e Nevada v . United State •• 463 U.S. a: :23-:26), those events a~e not necessarlly o@~er~ inat ~v e o! : ~ e pArticu~ar ~ate: :~ght5 clai~ed in this case, which ~re based in large meal~re on ~he mere ownerShip o! cer:ai n l a~d ( a~c i ent taro lands and ilis ~u?onO ) .

w. agre. thAtl i~ the &cse~ce of a ncxioua use or simi~.r adverse impact on others. past and present use. of property ordinarily must be :e.pected if :he impl.mentation of a new

[

r.9u1atOr y program is to avo i d qivinq rise to a taking of I ) property within the meaning of the Just Compen.ation Clau •• . See I • P.nn C.ntral. 438 U.S. at l36, id. at 144-145 (Rehnquist. J.,

du.entlng). Nevertheleu. theC!ourt hai held that. in certu~ c1rcum.tanc •••• ven an existing us. ma~ be proscribed without .tt .ctlng a eakln9. See id. at 1 2 ~-l2. At the .ame t i me. a (C'6nt l nu.d ) --

))


"

- 15 -

b. For pr •• ent purpoae •• however, the importance of the

Rawaii Supreme Court'. anawera to the certified queation. i. in

th.ir d •• cription of the i •• uea of .tate law affecting

r"pondent.' rights that r.main to be r •• oivld !!!!! the Supreme

Court'. d.ciaion in McBryde -- and that apparently remain open in

further proce.dinqi in McBryde it.elf. First, contrary to what

appear. to have b.en the parties' prior understandinq (a •• , ~.,

Pet. App. 39a n.22). the anlwera to the certified queationl now

Bake clear that the decision in McBryde did not constitute the

final di.po.ition of that ease (id, at 23a-24a). The only

determination with rea judicata .ffect wa. the quantification of

the appurtenant water riqhts for ancient taro landI, which wa.

affirmed in McBryde and is not at issue here . The Supreme

Court'l rever.al of the remainder of the trial court'a judgment

limply rendered that portion of the judgment void. thereby

permitting a "continuation of the ease at the trial level" with

regard to all .apects of the cas. except the quantification of

appurtenant water rights for ancient taro lands (~. at 24a).

The Supreme Court recognized that it a l lo had addresaed

other i •• ues in i ts opini on in MCBrvde : i t "confirmed the

exi.tenee of riparian rights. delineated l i mitationa on the right

to transport appurtenant ~aters, and found that the State was the

owner of surplus waters" (PIt. App, 23a ) . But because H did not

give instructions to the trial court on these question. or

exercise its own authori t y to render a flna l judqment, the

court's ruling. on these que.tion~ have only the status of ~he

I'law of the case " in t he f urther pr oceRd ings that must tA ke p:aee

in the trial court before a fina l j udgme nt i s en:ered I ~, at

prohibition aqainst the f"ture exercise of • previously uni nvoked incident of ownership may , i n the proper ea.e. e~t.ct _ tak i ng, See United States v . Ri vers i de Sayview Homes. :nc .• No, 84- 701

[

(Dec. 14, 1985), sl i p op , at 4. However. to the oxant t he deci.ion of the court of appea l . i. baled on concepts of ~v •• tin91' chat Ire not rooted i n State l aw, i t , •• ulta in a deClaration regarding the circumstances in which a taking wi ll be found that i. potentially both under- and over-inclu.ivl.


f ... ,-'

- 15 -

24a). The Supreme Court explained that tho •• ru1in9' would

".erv. a. e roundation" for tho •• lurther proceeding. but "would

not n.c .... rily b. completely d1lpelitive" of th.m, beca"se the

doctrin. ot the law of the ca.e ia "'not subject to the

inflexibility ot rea judicata'" (ieL at 241 , n.9, quoting

Glover v. rong, 42 !law. 560, 578 (1958)). Thu" although the

Supreme Court has expressed its opinion at an int.rlocutory atag.

of the proce.dingl on q"'8tions of law that might ev.ntually ~

affect re.pendents' property right', it rated

thoae ruling' into a tinal judgment that ha. a binding effect on ~

(

reapondent.. And until it doe. 10, the Supreme Court pr •• umablY)

; etain. the authority to alter ita rulings. Compare Arizona v.

California, 460 U.S. 605, 618-619 (1983).

Thil cas. therefore is in the same posture in which the

adminiltrative prlceedings in Williamson County would have been

it the Planning Commie.lon had expressed its opinion on clrt,in

legal i.lues but had not yet denied the developor'. subdivision

application. In that event, the dave10per c~early would not have

obtain.d the requiSite "final dec i sion " regarding it and how it

would be permitted to develop the l and, and it therefore would

nOt have a ripe takinQ c l aim. Williamson County, Ilip op. 17.

So here, until judicial proceedings are "complete" (g. at 22),

the r.sponsible state entity has not rendered its "final

deci.ion" that bind. respondents and has concrete legal

consequenc •• for them. At least until that time, respondent. may

continue to di vert water. In short , the mere rende'inQ of a

l !Jal opin ion at a n interlocutory stage ot proceedings in state

court concerning :!sponde~ts ' rights dO@i not con5t itu~ e • . "takin9" of tl"e:r property . Kir!:>y :ore9t ~ndustrie5, Inc. v.

United States, 467 U.S. 1, 15 (1983), Aginl, 447 U.S. at 263 n. 9,

Oanforth v. United Statu, 30e U.S. 271, 285 (1939).

Nor i. this an inltance in which further proceedingl in

stat. court would have no .ffect en respondents' taking claim.


- 17 -

Cf. Cos iro.dc •• tin9 Corp. v. ~. 420 U.S. 469. 417-481

(lP75). To the contrary. the aawaii Supr.m. Court ', an.w.ts to

the c.rtifi.d qu •• tiona establish that the deciaion in McBryde

did ~ .r.dic.te all bas •• for protection of reapond.ntl'

div'rlionl and that a number of i •• ues bearing on that protection

r.~in to be decid.d in state court.

ror ,xample , althouqh the MCiryde decision declares the

State to b. the owner of all lurplul water in the Hanapepe

wat.rlh.d (P.t. App. 162a-174a). the anlwerl to the certifi.d

queltionl make cl.ar that McBryd. did not hay. r.ference to

ownerlhip in the corporeal len ••• under which the St.t. could

dilpo., of the water entirely .1 it plealel. but rather

contemplat.d the retention by the Stite of authority "to .ssure

the continued exiltence and beneficial app l i cation of the

r'lource for the common good" (id. at 51a) . As thil Court ha.

recognized. the public ownerlhip theory i' "but a fiction

expr'llive in legal shortha nd of the i mportance to its people

that a State have power to preserve and regula te the exploitat i on

of an important re.ource." Spor ha .. v. NebraSKa, 458 U.S. 94l,

951 (1982), quot ing Hughes v. Okhhoma, 441 U.S. 322, 334 (1979),

and Toomer v. Witse ll , 334 U. S. 385. 402 (1948). See also

Sporh •••• 458 U.S. a t 951-954. But this Court h~1 "made it qu!te

clear that the mer. assert ion of reQulatory juri sdiction by a

qovernm.nta l body do •• not constit ut e a requl~to ry t~king.·

United States v. Riverside Bayvie'" nones. rnc., lIo. 84-701

(Dec. 14. 19!5), slip op. at 4-5.

Beyond th i s. McBryde and the answe rs to the certified

qu •• tions eltabl i sh only tha: the Robi nlon ,espondents do not awn

tn. lurp1us ~at.r in the sense of h~v'n9 :he un fe tt ered rig~t :0

u •• it in Any manner they choole, and none of th~ t •• ponder.~5 has

"ablolute and exclusiv.!' interest! in the wat@r, including an

"inh.r.nt enforceablQ right" to transmit water b.yond the land to

which their usufructory inter.stl appertain (Pet. App. 19a,


.. 18 -

55a). But thl Supreme Court or Hawaii authoritatively held in

the anlwer. to the certified que.tiona that the application of

the ,eneral principles in the McBryde opinion to any particular

diYeraiona and the circum.tane •• under which any exiltln9

diyeraion. may continue were not addressed or decided in McBryde,

Iyen a. the law of the c •• e. !!. at 19.-21., 23.-25., 42a. The

Supr ••• Court made clear, 1n ~.ct, that diverliona would be

-barred only aftlr a careful ••• elsment ot the intere.ta involved

indicate. a nled for rlstraint" (1d. at 211) and that any action -to reatrain diyerlions would require consideration of the

equitable doctrinea o~ lache., •• toppal, and pub11c u •• (id. at

l'a-20.). The.e qu •• tiona appar'ently remain open in further

proc •• d1nvs in McBryde itl.ll, lince the anlwers te the certified

que.tiona Itate that Amon; the tI~nr'801ved tactual and legal

i •• u.I" in that cale are "the nature and scope oe any remediel to

be afforded the parties" (£g. at 25a). They allo NY be

ad4re.led in an independent action brou9ht in state court by

either petitioner or respondent <!i. at 19a-21a, 42a).

The.e procedures in state court by which rel2on4ents may be

permittld to divert water afford the possibility for the ~.ry

protection that the court of appeals held to be constitutionally

compelled for what it termed respondents' Uvested ri9ht" (~. at

10a-12a). ReBor~ to these procedure" either 1n MCBryde itself

or in any independent action, therefore 1s directly analogous to

the .pp~ieatlon for a variance or .imilar adm1~i.tr.tlv. relief

that this Court held in Williamson County (Slip OPe 13-18) an~

Vir9inia Surf.c. Mining (452 C.S. at 297) might •• rve to permit

u ••• of property to the extent neces;ary to obviate any tak:ng

problem. Thus, ~ntj,l' the state C01.lrts have .'Iarr J,veeS at a ! inal,

definitive position" (Williamson County, slip Opt 17) re9ardin;

existin9 diversions, it cannot be determined whether r •• pondent's

intereat. will be .0 substantially impa1red by an actual

prohibition as to precl\,lc!e "lconomieally viable y ..... of their

./


- 19 -

all'qed riqhtl ~nder pre-Hc!ryde law (Riverlide layview Hom.s,

Ilip op. 5) or to ~ndermine substantially thair "inve.tment

bicked aspect.tion." (Kal.er Aetna, 444 U.S. at 175). Se •• lso

'enn Central, 438 U.S. at 130-131, Andru. v. All.rd, 444 U.S. 51,

66.

In lum, we believe it ia quite claar on the b'lis of the

anlverl to tha certifiad que,tion. that no final action that

co~ld amo~nt to a "takin;" of reapondanu' property ha. yet

occ~rred in tha McBryde case. Accordin;ly, thia federal .~it I ,

Iho~ld be di.mia.ed, 10 that any nlc811ary .tate court -procaedinqa may r~n their cour •• and thereby perh.ps obviate any

takinq cl.im, or at lea8t sharpen the inquiry into the various

factorl that are rel.v.nt to luch a claim. We rec09nil',

howaver, that the decillon of the court of appeal. in this case

was rendered before Williamson County, Which gr.atly clarified

the role of final i ty aa a prerequisite to a taking claim. The

Court therefore mi;ht wi,h to vacate the judgment below and -re~nd thi ca,e to the court of appeall for further consideration

~ li;ht of Williamson County. !n any event, the Court should

grant the petition in order to eliminate the substantial

intruaion by the courtS below into the litigation in Itate

with "9ard to wator ri;hts in tho Hanapepe watorohed and,

court)1

mort!


,

- 20 -

generally, into the cas~-by-ca8e development 0' .tate water law

by the Supreme Court ot Rawaii. __ I

If, al we lubmit, ro rlate dis osition il 'or this dis ck of final action ate t at

cOu r1 e 0 issue. preaented by petitionera are ot no moment here. Petitionerl contend (Pet. 20-22; Pet. Reply 8r. 6-8) that the Rawaii Supreme Court'l deci.ion in Mc8ryde precludes relpondent. trom bringing their taking claim in leder.l di.trict court, becauae "'a United Statel Diltrict Court hal no authority to review final judgmlnta ot a Itatl court in judicial procledings. Review of luch judgmentl mar be had only in thil Court'" (Pet. 20, quoting Oiltrict of Co umbia Court ot Antala y. Feldman, 460 U.S. 462, 482 (1983) j. See Rooker v. tIdilY fruat Co., 263 U.9. 413 (1923). Rowlver, it now Is cllar 1n light ot the anlwera to the certified questionl thst the dlcilion in McBryde was not" "final judgment or decne" of the Supreme Court of Hawaii that was aubject to review by this Court unalr 28 U.S.C. 1257, because important questiona rlmained to be decided in that case that would have a direct blaring on rlspondents' taking claim. The d~fect in the judgment below

~~theretore i5 that it intrudes into non-final itate court procl,dings -- a subject addressed not by Feldm~n and Rooker, but by the abatention doctrine as a general m~tter (see Ptt. Reply 8r. 9-10) and by the finality requirement of Williamson County in the particular context ot a taking claim.

Petitionerl' rllhud contention (Pet. 24-26) that the full faith and credit statute, 28 U.S.C. 1738, bars relitigation of rttpondenta' t~king claim in ~his case is misp:aced for similar realon •• AI petitioners acknowledge, that statute "requires a ttderal court to look first to State prec~usion law in dttermining the preclusive effects of a state court judgment" (Ptt. 24, quoting Marrese v. Amerlcan Acade~y of Orthopedic Surieonl, NO. 83-1452 (M~r. 4, 1985) slip op. 7). S~e also Parsons Steel, Inc. y. First Ahbama Bank, No. 84-1616 (J~n. 27, 1986). In thlS case, tht Hawaii Suprtme Court held in itS anlwers to the certified question, that because no final judgment hal bIen entered in McBryde on ~ny issue other than the quantification of appurtenant water rights (which is not at issue htr.), the decilion in McBryde has no bar and merger or issuepreclusion effect that :s relevant to this case. At present, ~he McBryde rulings r.girdin9 riparian rights, the transportability of water, and State ownersnio of surpl~s water, are ~erelv t ns law of t~e C", (Pet. API? 23a-24a). Thus, unti ~ a fl nal jud9ment is ent~red in McSrvde on other i.s~e9 that relate directly to respondents' :aK~~g cl~i~. neither th .. doctrJ.ne of res judicata nor the ~u:l ~a~:h and credit s~at~:" is the source of the bar to litigation en ~.d"ral court. 3y :he same ~oK~n, when a final :udgment is e~:er.d ~n McBrvde, respondents ~ill be free to prlsent to thiS-Court on direct review under 28 U.S.C. 1257 any conttitutional obj~ctioni ~o the .ffect that the actions ot thl .tatl court. might have on their property rights -includin9 their claim that thl decision in MCBryde, either on its face or al applied in future proceedings, reau1ts in an unconltitutional taking of their property without just compen •• tion (aee Pet. App. 42a).


CCITT 03 + 8085483235 ; #24

- 21 -

CONCLUSIOM

The petition for • writ ot certiorari ahould be 9ranted, the

jud,..nt of the court of appeal. vacat.d, and the ca •• remanded

to the court of app.al. for further consideration in light of

Willlamsen County .egional Planning Commi •• ion v. Hamilton lank

of John.on City, He. 84-4 (June 27, 1'86).

MAY l'IS

".pectfully lubmitt.d.

CBARLES PItIED Solicitor General

r. RENRY HAllCRT II Alli.tant Attorney aeneral

LAWRENCE G. WALLACI Deputy Solicitor Oeneral

EDWIN S. KNEEDL!R AI.istant to the Solicitor deneral

PETER R. STEENLAND, JR. ANNE S. At-MY

Attorney.

P24


Documents

IN THE SUPREME COURT OF TH! UNITED STATES of Kawali and a'R concerning the latterl, diverllonl. Th, Territory, al th' owner of the Ahupuaa of Ranapepe, claimed that 1t va. the owner