Two years ago, DW \u2018Aina Le\u2018a Development, LLC (DWAL), brought a federal lawsuit against the state Land Use Commission, claiming $200 million in damages as a result of the agency\u2019s 2011 vote to revert to the Agricultural district land in South Kohala, Hawai\u2018i Island. <\/p>\n\n\n\n
Nearly all of the 1,060 acres downzoned by that action is owned by \u2018Aina Le\u2018a, Inc., of which DWAL is a major shareholder. <\/p>\n\n\n\n
The state asked Judge Susan Oki Mollway to dismiss the case, arguing that the statute of limitations had well and truly expired. In July 2017, Mollway agreed. DWAL appealed. <\/p>\n\n\n\n
On February 12, in the moot courtroom of the William S. Richardson School of Law in Honolulu, a three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments in the case. <\/p>\n\n\n\n
Central to DWAL\u2019s appeal is its claim that there is no specific law in Hawai\u2018i that covers the type of claim it is making \u2013 what it describes as a \u201cnon-tortious takings claim\u201d based on the Fifth Amendment of the U.S. Constitution and Article 1, Section 20 of the Hawai\u2018i Constitution. For such general claims, Hawai\u2018i has a six-year statute of limitations. Included among the types of actions that may be brought within that period are \u201cpersonal actions of any nature whatsoever not specifically covered by laws of the state\u201d (the quotation is from HRS \u00a7 657-1(4)). <\/p>\n\n\n\n
Judge Mollway didn\u2019t disagree that it was a non-tortious claim, as DWAL had argued. She determined that the best fit for dealing with it was the Civil Rights Act of 1871, codified as 42 U.S.C. \u00a7 1983. It\u2019s not a perfect fit, since Section 1983 does not allow claims against a state. Still, she found that the 9th Circuit has made \u201crepeated statements that takings claims must be brought under \u00a7 1983.\u201d <\/p>\n\n\n\n
There is no federal statute of limitations for Section 1983 claims. Instead, federal court rules say that the applicable time\nframe is to be determined by referring to\nthe state statute of limitations that applies\nto personal injury actions.\n<\/p>\n\n\n\n
In Hawai\u2018i, that statute is HRS \u00a7 657-7. It provides for a two-year period within which to initiate actions after an injury\nhas occurred.\n<\/p>\n\n\n\n
Regardless of that, Mollway ultimately\nagreed with the state that DWAL\u2019s claim\nshould have been brought under either HRS\n\u00a7 661-5 (\u201cEvery claim against the state …\nshall be forever barred unless the action\nis commenced within two years after the\nclaim first accrues\u201d) or \u00a7 657-7 (personal\nor property injury). \u201cUnder either of these\nprovisions, DW failed to timely assert its\nclaim,\u201d Mollway wrote.\n<\/p>\n\n\n\n
\u2018Playing with Fire\u2019\n<\/p>\n\n\n\n
During arguments before the appellate court, Judge Jay Bybee asked DWAL attorney Sang Peter Sim why the company took so long to seek damages, noting that Bridge \u2018Aina Le\u2018a, which also has a stake in DWAL\u2019s development, had done so early on. <\/p>\n\n\n\n
\u201cBridge filed a timely suit. … Why did\n[DWAL] wait years?\u201d Bybee asked Sim.\nBecause of the company\u2019s delay, \u201cit\u2019s got\nto stand on its head to prove [the statute of\nlimitation is] six years. It seems your client\nwas playing with fire,\u201d Bybee said.\n<\/p>\n\n\n\n
Sim said simply that DWAL believed it had six years to file a lawsuit, adding that it also did not want to be in court while it was trying to work with all parties to develop its land.
<\/p>\n\n\n\n
When it came time for his rebuttal, state solicitor general\nEwan Rayner pointed out that\nDWAL was, in fact, already in\nlitigation at the time with the\nLand Use Commission.\n<\/p>\n\n\n\n
While the state had argued that two state laws (HRS \u00a7 661-5 and \u00a7 657-7) cap the statute of limitations in this case to two years, Bybee noted that the state was basing its argument that \u00a7 661-5 applied on a single footnote in a Hawai\u2018i Supreme Court decision regarding Maunalua Bay. \u201cIt\u2019s pretty thin,\u201d he said before suggesting that perhaps the 9th U.S. Circuit Court of Appeals should ask the state Supreme Court to settle the issue of which statutes apply. <\/p>\n\n\n\n
Rayner replied that such\na request was unwarranted,\nespecially since DWAL hadn\u2019t\ncited any <\/em>case where the \u201ccatch-\nall\u201d law providing for a six-year\nstatute of limitations applied.\n<\/p>\n\n\n\n Judge Richard Tallman, however, seemed concerned about issuing a ruling that might be contrary to the state court\u2019s interpretation. \u201cThe Hawai\u2018i Supreme Court is the ultimate arbiter of state law,\u201d he said. Tallman also questioned how HRS \u00a7 657-7 applied. That law covers actions that\ndamage or injure people or property and in\nthis case, he said, \u201cthere was no injury to\nthe property itself.\u201d\n<\/p>\n\n\n\n Rayner countered that the LUC\u2019s decision to change the property\u2019s land use district did, in fact, injure the property. <\/p>\n\n\n\n \u201cIs that injury to the property or the\nproperty owner?\u201d Tallman asked.\n<\/p>\n\n\n\n \u201cBoth,\u201d Rayner replied.\n<\/p>\n\n\n\n As of press time, the appellate court had not issued a ruling. <\/p>\n\n\n\n \u2014Patricia Tummons\/Teresa Dawson <\/strong><\/p>\n\n\n\n Two years ago, DW ‘Aina Le‘a Development, LLC (DWAL), brought a federal lawsuit against the state Land Use Commission, claiming $200 million in damages as a result of the agency’s 2011 vote to revert to the Agricultural district land in … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11052,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[451],"tags":[7,3],"class_list":["post-11051","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-march-2019","tag-patricia-tummons","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11051","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11051"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11051\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11052"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11051"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11051"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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