plaintiff-appellant’s opening briefno. 17-16280 united states court of appeals for the ninth...

No. 17-16280

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DW AINA LE'A DEVELOPMENT, LLC,

Plaintiff-Appellant, -against-

STATE OF HAWAII LAND USE COMMISSION,

THE STATE OF HAWAII, and JOHN DOE GOVERNMENTAL UNITS 1-10,

Defendants-Appellees.

On Appeal From The United States District Court For the District of Hawaii

Case No. 1:17-cv-00113-SOM-RLP The Honorable Susan Oki Mollway

PLAINTIFF-APPELLANT’S OPENING BRIEF

SIM & RECORD, LLP Appellate Counsels for Plaintiff-Appellant 42-40 Bell Blvd, Suite 602 Bayside, New York 11361 (718) 631-7300 [email protected]

Pollux Printing, Inc. (718) 631-1400 | www.polluxprinting.com

REPRODUCED ON RECYCLED PAPER

Case: 17-16280, 09/27/2017, ID: 10596494, DktEntry: 9, of 47

- i -

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, DW AINA LEÀ

DEVELOPMENT, LLC submits the following corporate disclosure statement:

DW AINA LEÀ DEVELOPMENT, LLC is a privately held company. DW

AINA LEÀ DEVELOPMENT, LLC has no parent corporation and no publicly

held company holding 10% or more of its stock.

Dated: Bayside, New York September 27, 2017

s/ Sang J. Peter Sim

By: SANG J. PETER SIM, ESQ. SIM & RECORD, LLP

Appellate Counsel for Plaintiff-Appellant 42-40 Bell Blvd, Suite 602 Bayside, New York 11361 (718) 631-7300 [email protected]


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TABLE OF CONTENTS Page No.

CORPORATION DISCLOSURE STATEMENT .................................................. i TABLE OF AUTHORITIES .................................................................................iii STATEMENT WITH RESPECT TO ORAL ARGUMENT ................................. 1 INTRODUCTION .................................................................................................. 1 JURISDICTIONAL STATEMENT ....................................................................... 3 STATEMENT OF ISSUES .................................................................................... 4 STATEMENT OF CASE ....................................................................................... 5 SUMMARY OF ARGUMENTS............................................................................ 9 ARGUMENTS...................................................................................................... 16

I. STANDARD OF REIVEW ............................................................. 16 II. THE SIX-YEAR STATUTE OF LIMITATIONS

UNDER HRS §657-1(4) IS APPLICABLE .................................... 17

A. DW’S CLAIMS CANNOT BE TREATED SIMILARY TO A §1983 CLAIM ......................................... 18

B. HRS § 661-5 IS NOT APPLICABLE ................................... 29 CONCLUSION..................................................................................................... 38 STATEMENT OF RELATED CASES................................................................ 39 CERTIFICATE OF COMPLIANCE.................................................................... 40 CERTIFICATE OF SERVICE ............................................................................. 41


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TABLE OF AUTHORITIES Page No.

Cases Association of Apt. Owners v. Venture 15, Inc. 115 Haw. 232, 167 P.3d 225 (2007) ..................................................................... 25 Bieneman v. City of Chicago 864 F.2d 463, 469 (7th Cir. 1988) ....................................................................... 23 Bivens v. Six Unknown Named Agents 456 F.2d 1339 (1972).............................................................................6, 18-22, 24 Cashman v. City of Cotati 374 F.3d 887, 892 (9th Cir. 2004). ....................................................................... 16 De Malherbe v. International Union of Elevator Constructors 449 F. Supp. 1335, 1341 (N.D. Cal. 1978) ........................................................... 17 DW Aina Le’a Development, LLC v. Bridge Aina Le’a, LLC 134 Haw. 187, 339 P.3d 685 (2014) ..................................................................... 11 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, (1987)........................................................................................26-27 Guam Scottish Rite Bodies v. Flores 486 F.2d 748, 750 (9th Cir. 1973)...............................................................16-17, 28 Howlett v. Rose 496 U.S. 356, 357 (1990) ....................................................................................... 5 Jacobs v. United States 290 U.S. 13 (1933)...........................................................................................26-27 Kaho’ohanohano v. State 114 Haw. 302, 162 P.3d 696 (2007) .....................................2, 7, 12, 15, 29, 32-33


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TABLE OF AUTHORITIES (Cont’d) Page No.

Cases Kaleikini v. Yoshioka 129 Haw. 454, 304 P.3d 252 (2013) ..................................................................... 32 Marshall v. Kleppe 637 F.2d 1217 (9th Cir. 1980) ....................................................................................... 21-22, 24-25 Maunalua Bay Beach Ohana 28 v. State, 122 Hawai’i 34, 222 P.3d 441(Haw. Ct. App. 2009) ........................................................ 7-8, 34-37 Pele Defense Fund v. Paty 73 Haw. 578, 595, 837 P.2d 1247 (1992) ............................................................... 6 San Diego Gas & Electric Co. 450 U.S. 621, 654-655 (1981) .............................................................................. 27 Trs. of the Constr. Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925, 64 Fed. Appx. 60 (9th Cir. 2003) ......................................... 16 Vail v. Employees' Ret. Sys. of the State of Hawai'i 75 Haw. 42, 52-57, 856 P.2d 1227, 1233-36 (1993) ............................................ 30 Van Strum v. Lawn 940 F.2d 406, 410 (9th Cir. 1991) ................................................................6, 18-24 Ventura Mobilehome Cmtys. Owners Ass'n v. City of San Buenaventura 371 F.3d 1046, 1050 (9th Cir. 2004) ................................................................... 16 Wilson v. Garcia 471 U.S. 261, 276, 280 (1985) ............................................................ 6, 18, 20, 23


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TABLE OF AUTHORITIES (Cont’d) Page No.

Constitutions, Statutes and Rules 28 U.S.C §1291 ...................................................................................................... 4 42 U.S.C. § 1983.......................................................................... 3-7, 14, 18-26, 28 Act 73 ...........................................................................................................8, 34-36 Act 73, 2003 Haw. Sess. Laws at 128 .................................................................. 34 Article 1, Section 20 of the Hawai’i Constitution .............1-3, 5, 13, 18, 27, 32, 37 Article 16, Section 2 of the Hawai’i Constitution ................................................ 30 Fifth Amendment ...................................... 1-6, 13-14, 18, 20-22, 24, 26-28, 32, 37 Fourteenth Amendment ........................................................................................ 26 FRCP 12 (b)(6) ..................................................................................................... 12 FRCP 54(b) ............................................................................................................. 4 HRS § 88-42.......................................................................................................... 30 HRS § 205-4(g)......................................................................................8, 28, 35-36 HRS § 657-1(4).............................................................. 1, 12, 13, 16-17, 25, 37-38 HRS § 657-7............................................................................... 1-3, 6-8, 13, 25, 38 HRS § 661............................................................................7, 12, 15, 29, 30-35, 37 HRS § 661-1...........................................................................................2, 15, 30-32 HRS § 661-5........................................1-4, 6, 7-8, 12, 13, 15, 21, 25, 29-33, 35, 37 HRS § 667-7.........................................................................................13-14, 18, 21


1

STATEMENT WITH RESPECT TO ORAL ARGUMENT

DW Aina Le’a Development, LLC hereby requests oral arguments.

INTRODUCTION

DW Aina Le’a Development, LLC (hereinafter referred to as “DW”

or “Plaintiff-Appellant”) commenced the instant action against the State of

Hawai’i and the State of Hawai’i, Land Use Commission (hereinafter

referred to as the “State” or “Defendant-Appellee”) on February 23, 2017, in

the First Circuit Court in the State of Hawai’i. DW’s claims against the

State are constitutional causes of action for a takings founded upon a

violation of the Fifth Amendment to the United States Constitution and

Article I, Section 20 of the Hawai’i Constitution. (ER.81-103) Thereafter,

the State removed the action from the First Circuit Court in the State of

Hawai’i to the United States District Court for the District of Hawai’i.

(ER.48)

Immediately thereafter, the State filed a motion to dismiss arguing

that DW’s claims are time-barred under Hawai’i Revised Statutes (“HRS”) §

661-5 and § 657-7. (ER.41-71) DW filed its opposition and asserted that

Hawaii’s catch-all statute of limitations of six years under HRS § 657-1(4)

was applicable to DW’s Fifth Amendment takings claim for just

compensation. (ER.132-134)


2

DW asserted that HRS §661-5 was not applicable since the

jurisdictional requirements under HRS §661-1 have not been satisfied. In

this respect, the jurisdictional provision under HRS §661-1 requires that

DW’s cause of action arises from a statute, a regulation or a contract with

the State in order for HRS §661-5 to be applicable. DW’s assertion is in

accord with the holding of the Hawai’i Supreme Court in Kaho’ohanohano

v. State, 114 Haw. 302, 162 P.3d 696 (2007). Since the instant action does

not arise from a statute, regulation or a contract, DW argued that HRS §661-

5 cannot be invoked to limit DW’s claims to a two-year statute of

limitations. The District Court improperly ignored the holding in

Kaho’ohanohano v. State, 114 Haw. 302, 162 P.3d 696 (2007) and decided

that HRS §661-5 was applicable to the instant case to limit DW’s claim to a

two-year statute of limitations despite the fact that DW’s claims do no arise

from a statute, regulation or a contract with the State.

With respect to the State’s argument that HRS §657-7 applies, DW

argued that a constitutional non-tortious takings claim arising directly from a

violation of the Fifth Amendment to the U.S. Constitution and Article 1,

Section 20 of the Hawai’i Constitution cannot be treated similarly as a

personal injury action for purposes of the statute of limitations. However,


3

the District Court held that all non-tortious takings claims shall be treated

similarly to §1983 actions for statute of limitations purposes.

In error, the District Court granted the State’s motion by holding that

DW’s claims are time-barred under both HRS §661-5 and HRS §657-7.

Thus, Plaintiff-Appellant appeals from the Decision and Order of the

United States District Court for the District of Hawai’i dated June 13, 2017

and Judgment dated June 13, 2017 issued by the Honorable Susan Oki

Mollway, granting the Motion to Dismiss the Complaint to the State of

Hawai’i and the State of Hawai’i, Land Use Commission. (ER.4-35) It is

respectfully submitted that the Decision and Order of the United States

District Court erred in holding that the two-year statute of limitations under

HRS §§ 661-5 and 657-7 was controlling to preclude DW’s direct

constitutional action for a non-tortious takings arising from a violation of the

Fifth Amendment to the U.S. Constitution and Article I, Section 20 of the

Hawai’i Constitution. For this reason, this appeal ensues.

JURISDICTIONAL STATEMENT

The subject matter jurisdiction in the District Court was proper since

the issue presented in this action was a direct constitutional action under the

Fifth Amendment to the U.S. Constitution and Article I, Section 20 of the

Hawai’i Constitution that was originally brought by the Plaintiff in a state


4

court action. The Defendant-Appellee removed the state action into the

District Court of Hawai’i. As such, this Court has subject matter

jurisdiction. As the District Court properly noted in its Decision and Order,

the parties agreed that there was no jurisdictional bar to the District Court’s

proceedings.

Further, this Court has jurisdiction under 28 U.S.C. §1291 because

this is an appeal from a final Order and Judgment entered by a District Court

within this Circuit pursuant to Rule 54(b) on June 13, 2017. Plaintiff-

Appellant timely filed its Notice of Appeal on June 20, 2017, which was

entered on June 20, 2017 with the Clerk in the United States District Court

for the District of Hawai’i.

STATEMENT OF ISSUES

1. Whether the District Court erred in concluding that Appellant’s claims

are governed by a two year statute of limitations under HRS §661-5.

2. Whether the District Court erred in holding that direct constitutional

actions for a takings claim arising from a violations of the Fifth

Amendment should be treated similarly to §1983 actions for purposes

of the statute of limitations.

3. Whether the District Court erred in holding that Hawaii’s catch-all

statute of limitations of six years did not apply in this case.


5

STATEMENT OF THE CASE

The District Court dismissed DW’s claims as being time-barred.

(ER.4) The District Court acknowledged that DW seeks monetary damages

from the State for the taking of property without payment of just

compensation in violation of Article I, Section 20 of the Hawaii Constitution

as well as the Fifth Amendment to the United States Constitution.

Notably, the District Court found that DW’s Federal takings claim

was not brought pursuant to 42 U.S.C. §1983. In this respect, the District

Court observed that the State cannot be deemed a person for purposes of

§1983 and thus, the District Court properly found that a Court may not

“entertain a §1983” against the State by citing Howlett v. Rose, 496 U.S.

356, 357 (1990). (ER.17) The District Court recognized that DW could not

legally commence a §1983 claim against the State or the Land Use

Commission since the State can never be deemed a “person” under §1983.

As such, the District Court properly held that DW did not bring its federal

takings claim pursuant to §1983. (ER.18)

After recognizing that DW could not have brought an action under

§1983, the District Court raised the question as to whether the DW may

commence an action against the State for direct federal takings claim

pursuant to the United States Constitution. The District Court then noted


6

that “[f]ortunately for this Court, it need not determine whether or when a

state may be sued in federal court directly under the United States

Constitution” since DW’s claims are time-barred. (ER.21) The District

Court held that under both HRS §§657-7 and 661-5, DW’s claims are time

barred. (ER.21-22) The District Court noted that in Wilson v. Garcia, 471

U.S. 261, 276, 280 (1985), the United States Supreme Court held that

“§1983 claims are best characterized as tort actions for personal injuries and

that federal courts must borrow the statute of limitations governing personal

injury actions in the state in which the action is brought.” (ER.22) The

District Court then noted that the Ninth Circuit in Van Strum v. Lawn, 940

F.2d 406, 410 (9th Cir. 1991) recognized that both §1983 and Bivens claims

(Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (1972)) are “claims

invoking the Constitution directly by a practical concern.” (ER.22) The

District Court then provided, in pertinent part, as follows:

This court similarly recognizes that there is no substantive distinction between a federal regulatory takings claim brought against a city, county or municipality under § 1983 and a federal regulatory takings claim that might be brought against a consenting state entity directly under the federal constitution. Any federal regulatory takings claim seeks monetary damages arising from some regulatory action that allegedly violated a plaintiff's rights under the Fifth Amendment's Takings Clause. There is no reason that a § 1983 takings claim against a city should be subject to a limitations period shorter or longer than a takings claim against a state. A §-1983 claim is subject to Hawaii' s two-year tort statute. See Pele Def. Fund v. Paty, 73 Haw. 578, 595, 837 P.2d 1247, 1259. (1992). A federal takings claim, whether


7

brought under § 1983 or directly under the Constitution, should be subject to the same limitations period. (ER.23)

The District Court then noted that pursuant to HRS §657-7, personal

injury actions are subject to a two-year statute of limitations. (ER.23) The

court recognized that HRS is the State’s personal injury statute that applies

to §1983 actions. The District Court provided “it therefore follows that this

general personal injury statute of limitations applies to actions brought

against a state for an alleged taking.” (ER.23-24)

With respect to HRS §661-5, the District Court held that this statute

was an alternate statute that is applicable to preclude DW’s federal takings

claim. (ER.25) The District Court found DW’s argument that before HRS

§661-5 can be invoked, the jurisdictional requirement of chapter 661 must

be satisfied as unpersuasive. In this respect, the District Court provided that

DW contended that Maunalua Bay Beach Ohana 28 was distinguishable

because that case stood for the proposition that before invoking HRS §661-

5, the action must be founded on a statute, regulation or contract. However,

the District Court rejected DW’s argument and ignored the Hawaii Supreme

Court’s ruling in Kaho’ohanohano v. State, 114 Haw. 302, 162 P.3d 696

(2007). In this respect, the District Court stated that Maunalua Bay Beach

Ohana 28 does not stand for the proposition that the cause of action must


8

implicate a statute for HRS §661-5 to apply. (ER.26) The District Court

provides that the “Intermediate Court of Appeals simply identified the

applicable statute of limitations, Haw. Rev. Stat. §661-5, in a footnote when

the court recognized that the plaintiffs filed the complaint “one day shy of

two years from the date of Act 73’s enactment.” (ER.26) The District Court

also provided that the alleged takings claim in Maunalua Bay Beach Ohana

28 was no more statutorily based than the present case since DW seeks

compensation for a takings that took the form of the Land Use

Commission’s reversion of land to its former land use classification without

compliance with the requirements of Haw. Rev. Stat. §205-4(g). The

District Court provided, in pertinent part, as follows:

“DW’s takings claims, which challenges the Land Use Commission’s compliance with a Hawaii statute, is very much like the claim in Maunalua Bay Beach Ohana 28 challenging Act 73. Given the similarity of DW's claim to the claim in Maunalua Bay Beach Ohana 28, this court concludes that Haw. Rev. Stat. § 661-5 is an alternative statute of limitations applicable to DW's federal takings claim. Section 661-5 imposes a two-year-period within which to assert claims. Because DW filed its Complaint more than two years after the accrual date of April 25, 2011, that claim is time-barred under section 661-5.

(ER.28)

Under this rationale, the District Court dismissed DW’s claims as

being time-barred by the two-year statute of limitations under both HRS

§§661-5 and 657-7.


9

We respectfully disagree with the holding of the District Court and

thus, DW timely filed its Notice of Appeal and this appeal ensues.

STATEMENT OF FACTS

The subject matter of the instant action is the classification of 1,060

acres of land in South Kohala on Hawai’i Island (the “Property”). (ER.47,

83) By way of background, on or about January 17, 1989, the Land Use

Commission (“LUC”) reclassified the Property from the State Agricultural

land use district into the State Urban land use district (“1989 Order”), to

permit a developer to develop a residential community consisting of 1,924

residential units, along with support facilities and recreational amenities (the

“Project”). (ER.83)

Subsequently, Bridge Aina Le’a, LLC (“Bridge”) purchased the

property. On February 9, 2009, Plaintiff, DW Aina Le’a Development,

LLC, entered into a purchase agreement with Bridge Aina Le’a, LLC, which

gave DW the exclusive right to develop the Project. (ER.85) Therefore,

DW became the beneficial owner of the Project. DW then developed a plan

to complete the processing required to start development of the Project,

including construction of the initial infrastructure and construction of

affordable housing units, which would be the first units developed for the

Project. (ER.85) DW expended significant capital and resources into the


10

development of the land, including the low cost affordable housing.

During the relevant times, there were extensive filings and hearings

before the LUC regarding the Property. DW submitted a written petition to

the LUC to be made a co-petitioner with Bridge since DW owned the

developmental rights to the property. This petition was approved by the

LUC. DW provided the LUC with information on the development

background and experience of DW’s principals, DW’s plans to develop the

affordable housing, details on the 3- and 4-bedroom affordable housing

units, details on DW’s financing commitments, and DW’s construction

contract for civil work. (ER.86-87) The petition notified the LUC that a

reclassification of the Property from Urban to Agricultural use would make

it impossible for DW to proceed with its plans to develop the Project,

including the 385 affordable housing units. (ER.86-87) On May 27, 2009,

DW supplemented its petition with additional material showing its progress

and its substantial commencement. (ER.87) DW detailed the extent of work

done on the affordable housing site, which included construction of the

utility and sewer lines; identification and staking of offsite easement

corridors and wastewater treatment plant; construction of 16 townhouses;

substantial and partial construction of an additional 72 townhouses; and

construction of pads for additional 24-townhouse complexes. (ER.89-90)


11

On April 25, 2011, the LUC entered the Final Order Adopting

Proposed Findings of Fact, Conclusions of Law, and Decision and Order

Reverting the Petition Area, as Amended as Commission’s Final Decision in

Docket No. A87-617 (“2011 Order”) to agricultural. (ER.95) Both DW and

Bridge immediately appealed the 2011 Order. (ER.95)

On appeal, the matter was ultimately heard by the Hawai’i Supreme

Court. On November 25, 2014, the Hawai’i Supreme Court rendered its

decision in DW Aina Le’a Development, LLC v. Bridge Aina Le’a, LLC, 134

Haw. 187, 339 P.3d 685 (2014). The Supreme Court upheld the trial court’s

invalidation of the Land Use Commission’s reclassification ruling by

holding that the reclassification was improper since DW had “substantially

commenced” work on the property. As such, the question of whether there

has been a taking has been settled by the Hawai’i Supreme Court and thus,

any challenges would be subject to issue preclusion under collateral

estoppel, res judicata and law of the case doctrine. Therefore, the only basis

in which the State can challenge DW’s takings claims would be to challenge

the issue of whether the action is time-barred.

Prior to commencing suit, DW held discussions with the State in a

good faith attempt to settle the matter. After good faith discussions, it was

clear that the State would not pay DW just compensation.


12

On February 23, 2017, DW commenced action in the Circuit Court of

the First Circuit, State of Hawai’i, seeking just compensation for the takings,

within the applicable six-year statute of limitations. On March 13, 2017, the

State removed the action from state court into Federal Court. (ER.75-76)

Thereafter, on March 22, 2017, the State filed a FRCP 12(b)(6) motion to

dismiss contending that a two-year statute of limitations should apply to

DW’s takings claim, the application of which would serve to effectively

divest DW of its rights to just compensation under the law. (ER.41-71)

Contrary to the State’s contention, it is submitted that the proper statute of

limitations to apply in this case is the six-year statute, colloquially known as

Hawai’i’s “catch-all statute,” pursuant to HRS §657-1(4). DW commenced

its action within six-years from the date of the Land Use Commission’s

Final Order dated April 25, 2011.

The District Court erroneously held that HRS §661-5 was applicable

to impose a two-year statute of limitations even though the application of

which ignores the mandate of the Hawaii Supreme Court in

Kaho’ohanohano v. State, 114 Haw. 302, 162 P.3d 696 (2007) and is in

direct contradiction to the jurisdictional section of HRS Chapter 661, which

requires that all actions must arise from a statute, a regulation or a contract

before HRS §661-5 can be invoked.


13

Further, the District Court held that DW’s non-personal injury action,

namely a direct constitutional takings claim should be treated similar to torts

claim by holding that the general negligence statute under HRS §657-7

applied, thus holding that the two-year statute of limitations applied to all

Fifth Amendment takings claims, even those cases that are not personal

injury actions.

SUMMARY OF ARGUMENTS

It is submitted that HRS § 657-1(4) would be the applicable provision

that governs the statute of limitations in this case. This is Hawaii’s catch-all

provision that provides for a six-year statute of limitations on actions “of any

nature whatsoever not specifically covered by the laws of the State.” There

are no other statute of limitations provisions under Hawaii law that can be

applied where a non-tortious takings cause of action arises directly from the

Fifth Amendment of the Federal Constitution and Article I, Section 20 of the

Hawaii Constitution.

The State argued that both HRS §§ 667-7 and 661-5 governs in this

case. Both of these statutes provides for a two-year statute of limitations.

We respectfully disagree.

With respect to HRS §667-7, this statute does not apply simply

because DW’s land takings claim cannot be deemed to be a personal injury


14

action and thus, cannot be treated similarly to a §1983 claim. It cannot be

said that a non-tortious Fifth Amendment takings claim arising directly from

the Constitution is a personal injury action and thus, it cannot be thrown into

the same basket as §1983 claims.

For instance, in personal injury actions, the tortfeasor commits a

tortious act that was improper. On the other hand, in a Fifth Amendment

takings claim, the government is permitted to “”take” the land but is required

to pay just compensation. Since it is a permissible act, it cannot be said to

be a tortious act. The remedy of just compensation is provided for in the

United States Constitution. This is a distinction from §1983 cases in which

the remedy is derived from a statute or other personal injury claims in which

the remedy is set forth in common law. The District Court’s broad

categorization to treat all non-tortious constitutional claims as §1983

personal injury actions for purposes of the statute of limitations clearly

discriminates against interests protected by the United States Constitution.

As such, the District Court’s decision and order’s application of the personal

injury statute of limitations to DW’s direct non-tortious constitutional claims

should be reversed. Thus, it is submitted that HRS § 667-7 is not applicable

in this case.


15

With respect to HRS §661-5, it is submitted that before HRS §661-5

can be invoked to limit the statute of limitations to two years, the

jurisdictional chapter contained in HRS §661-1 must first be satisfied. To be

clear, the action must be cognizable under HRS Chapter 661 before HRS

§661-5 can be invoked. This reading is in conformity with the decision of

the Hawaii Supreme Court in Kaho’ohanohano v. State, 114 Haw. 302, 162

P.3d 696 (2007). The Hawaii Supreme Court held that before HRS §661-5

could be invoked to impose a two year statute of limitations, the claim had to

be cognizable under HRS § 661-1, which requires that the claims are

founded upon a statute of the State, or upon a regulation of an executive

department, or upon a contract with the State and were not referred to the

court by the legislature. If the claim is not cognizable under HRS Chapter

661, then HRS § 661-5 could not be invoked to impose a two year statute of

limitations.

In this case, DW’s claims are not founded upon a statute, upon any

regulation of an executive department or upon any contract and the claims

were not referred to the court by the legislature. As such, DW’s claims

cannot be deemed cognizable under Chapter 661. Since DW’s claims are

not cognizable under Chapter 661, HRS § 661-5 cannot be invoked to limit

DW’s claims to a two year statute of limitations.


16

As such, the only remaining statute of limitations is the six-year

catch-call statute of limitations under HRS §657-1(4). Thus, it is submitted

that this is the appropriate statute of limitations that should be applicable in

this case.

It is well settled law that if a substantial question exists about which

of two conflicting statutes of limitations to apply, the court should apply the

longer as a matter of policy." Guam Scottish Rite Bodies v. Flores, 486 F.2d

748, 750 (9th Cir. 1973).

It is respectfully submitted that the decision and order of the District

Court should be reversed in its entirety in order to permit DW to have its day

in Court.

ARGUMENTS

I. STANDARD OF REVIEW

The standard of review in reviewing a District Court’s grant of a

motion to dismiss on statute of limitations grounds are reviewed de novo.

Cashman v. City of Cotati, 374 F.3d 887, 892 (9th Cir. 2004). Ripeness is a

question of law, and it is also reviewed de novo. Ventura Mobilehome

Cmtys. Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1050 (9th

Cir. 2004). Further, whether a district court had supplemental jurisdiction is

reviewed de novo. Trs. of the Constr. Indus. & Laborers Health & Welfare


17

Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925, 64 Fed.

Appx. 60 (9th Cir. 2003).

II. THE SIX-YEAR STATUTE OF LIMITATIONS UNDER HRS §657-1(4) IS APPLICABLE

HRS § 657-1(4) provides that the six-year statute of limitations

would apply to all personal actions of any nature whatsoever not specifically

covered by the laws of the State. This is Hawaii’s catch-all provision that

provides for a six-year statute of limitations on actions “of any nature

whatsoever not specifically covered by the laws of the State.” It is

submitted that the catch-all provision under Hawaii law is applicable to

DW’s claims for a takings claim arising directly from the U.S. Constitution

and Hawaii Constitution.



longer as a matter of policy." De Malherbe v. International Union of

Elevator Constructors, 449 F. Supp. 1335 at 1341 (N.D. Cal.1978); Guam

Scottish Rite Bodies v. Flores, 486 F.2d 748, 750 (9th Cir. 1973) (per

curiam).

It is respectfully submitted that there are no other statute of

limitations provisions under Hawaii law that can be applied where a non-


18

tortious takings cause of action arises directly from the Fifth Amendment of

the Federal Constitution and Article I, Section 20 of the Hawaii Constitution.

A. DW’S CLAIMS CANNOT BE TREATED SIMILARLY TO A §1983 CLAIM

The District Court relied on Van Strum v. Lawn, 940 F.2d 406 (9th

Cir. 1991) in holding that DW’s claims are time barred under HRS §667-7.

In its holding, the District Court held that DW’s Constitutional takings claim

should be treated similarly to the personal injury civil rights cases under

§1983 and Bivens cases. (ER.29) We respectfully disagree since DW’s

claims are not a personal injury type of case. Rather, DW’s claims are a

non-tortious takings claims arising directly from the Fifth Amendment of the

Federal Constitution and Article I, Section 20 of the Hawaii Constitution.

In Van Strum v. Lawn, supra, plaintiffs appealed the District Court’s

dismissal of their Bivens type claims against a number of federal and county

officials on statute of limitations grounds. The Ninth Circuit Court of

Appeals considered the question of whether Bivens actions should be treated

similarly to §1983 claims in the wake of Wilson v. Garcia, supra. In Van

Strum v. Lawn, supra, this Court noted that the Supreme Court addressed the

question of the appropriate statute of limitations to apply to §1983 claims.

The Supreme Court in Wilson determined that the state statute of limitations

for personal injury was the choice that best effectuated §1983’s objectives.


19

This Court also noted that the Supreme Court did not address whether the

statute of limitations for personal injury should also apply to Bivens actions.

However, this Court found that actions under §1983 and those under Bivens

are identical save for the replacement of a state actor under §1983 by a

federal actor under Bivens. Similar to §1983 actions, this Court held that the

purposes of Bivens actions are best served through a uniform, easily

applicable limitations period that is unlikely to discriminate against interests

protected by the Constitution. Moreover, the rationale for applying the

statute of limitations for personal injury applies with even greater force to

Bivens actions. Notably, this Court held that “in some suits, as in the one at

hand, a plaintiff may choose to sue certain defendants interchangeably under

Sec. 1983 or directly under the Constitution” and thus, the Court found that

there is no reason to have a different period of limitations and any difference

would give the plaintiff an incentive to pick and choose whichever

jurisdiction provided the longer period, recreating the uncertainty that the

Supreme Court sought to eliminate. Thus, the Ninth Circuit held that the

personal injury statute of limitations properly applied to Bivens claims as it

does to §1983 actions.

In the case at bar, the facts of this case are clearly distinguishable

from the facts in Van Strum. First, the instant action is not a Bivens action.


20

Second, unlike the plaintiffs in Van Strum, DW did not have an option to

commence a §1983 claim. In fact, the State has conceded that DW could not

have brought a §1983 claim. As such, unlike the concern addressed by this

Court in Van Strum, DW could not have chosen to commence action against

the State interchangeably under §1983 or directly under the Constitution.

Finally, the damage sustained by DW cannot be said to be personal injuries.

In this respect, Bivens and §1983 claims are civil rights claims. Civil rights

claims are best characterized as personal injury actions and are governed by

the applicable state’s statute of limitations for personal injury actions.

Wilson v. Garcia, 471 U.S. 261, 280, 105 S. Ct. 1938, 85 L. Ed. 2d 254

(1985). However, it cannot be said that a non-tortious Fifth Amendment

takings claim arising directly from the Constitution is a personal injury

action and thus, it cannot be thrown into the same basket as §1983 and

Bivens claims. Unlike the tortfeasors in personal injury actions, the State

had the power and the right to revert the land from urban to agricultural

designation. However, upon reverting the land from urban to agricultural

designation, the State was required to provide just compensation to DW.

Clearly, the remedy of just compensation is provided for in the United States

Constitution. This is a distinction from §1983 cases in which the remedy is

derived from a statute or other personal injury claims in which the remedy is


21

set forth in common law. On the other hand, the remedy for DW’s

constitutional claim is embodied and contained directly in the Constitution

itself. However, the District Court’s broad categorization to treat all non-

tortious constitutional claims as §1983 personal injury actions for purposes

of the statute of limitations clearly discriminates against interests protected

by the United States Constitution. As such, the District Court’s decision and

order’s application of the personal injury statute of limitations to DW’s

direct non-tortious constitutional claims should be reversed.

Even though Van Strum carved out Bivens type cases from the

analysis provided for in Marshall v. Kleppe, 637 F.2d 1217, 1223 (9 Cir.

1980), it is submitted that the analysis provided by this Court in Marshall

continues to be applicable to non-tortious Fifth Amendments takings claims.

It is submitted that Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980) still

stands for the general proposition that for constitutional causes of action,

California’s personal injury statute (similar to HRS §667-7) and California’s

statute dealing with an action upon liability created by statute (similar to

HRS §661-5) would not be applicable. Rather, the Ninth Circuit in Marshall

held that the catch-all statute would be applicable for constitutional cause of

actions.


22

In this respect, the District Court ruled that Marshall was overturned

by this Court’s decision in Van Strum v. Lawn, 940 F.2d 406, which held

that Bivens type actions will be treated similarly to §1983 claims for

purposes of choosing the appropriate statute of limitations. However, we

respectfully disagree with the District Court’s interpretation of Marshall and

Van Strum as it applies to DW’s non-tortious constitutional Fifth

Amendment takings claim.

It is respectfully submitted that Marshall still stands for the general

proposition that direct constitutional causes of action cannot be treated

similarly to a §1983 action for purposes of determining the appropriate

statute of limitations. The effect upon Marshall by the decision in Van

Strum is that the Ninth Circuit Court of Appeals carved out Bivens actions

but did not go as far as to hold that all direct constitutional causes of action

will be treated similarly to §1983 claims for purposes of statute of

limitations. Rather, Van Strum only carved out Bivens type of actions from

the basket of direct constitutional actions.

Van Strum should not be read so broadly to stand for the general

proposition that all direct constitutional cause of actions are to be treated as

§1983 claims for statute of limitations purposes. A rationale for treating

Bivens cases similarly to §1983 cases as enunciated by this Court was due to


23

its reading of the U.S. Supreme Court’s decision in Wilson v. Garcia, 471

U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In this respect, this Court

in Van Strum provided, in pertinent part, as follows:

However, on a closer reading of the opinion, it is clear that the Court based its holding, not on either the text or legislative history of § 1983, but on the imputation of purposes to the 1871 Congress that enacted §§ 1983 and 1988 based on practical concerns about judicial administration of that statute. 2 See Bieneman v. City of Chicago, 864 F.2d 463, 469 (7th Cir. 1988) ("[Wilson] do[es] not depend on § 1988. Nothing in the text or history of that statute speaks to the question. The Court had to devise its own rule, and it made a practical choice for compelling reasons."), cert. denied, 490 U.S. 1080, 109 S. Ct. 2099, 2100, 104 L. Ed. 2d 661 (1989).

In actuality, the Supreme Court expressed three concerns in the Wilson analysis: First, the Court considered the need for a uniform, generic, easily applicable limitations period within each state. In the Court's words, "The experience of the courts that have predicated their choice of the correct statute of limitations on an analysis of the particular facts of each claim demonstrates that their approach inevitably breeds uncertainty and time-consuming litigation that is foreign to the central purposes of § 1983." Id. 471 U.S. at 272. Second, it weighed the need for a limitations period that would safeguard the rights of civil rights litigants, determining that "it is most unlikely that the period of limitations applicable to [personal injury] claims ever was, or ever would be, fixed in a way that would discriminate against federal claims." Id. at 279. Third, the Court determined that the personal injury statute of limitations best emphasized the personal nature of constitutional wrongs. Id. at 277-78. The Wilson Court explicitly rejected the notion that limitations periods for rights granted by statute should apply because, even though § 1983 is a statute, it is remedial and not substantive. Id. at 278. It explicitly held that the substantive force of § 1983 comes from the Constitution and in particular


24

from its provisions granting rights to persons independent of what a legislature might choose to grant them. Id. at 278-279.

All three of these concerns apply with equal force to Bivens actions. Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens. Like § 1983 actions, the purposes of Bivens actions are best served through a uniform, easily applicable limitations period that is unlikely to discriminate against interests protected by the Constitution. Moreover, the rationale for applying the statute of limitations for personal injury applies with even greater force to Bivens actions, which come solely from the provisions of the Constitution protecting personal rights.

Clearly, Van Strum only carved out Bivens type actions from the pool

of constitutional causes of actions.

In the case at bar, the District Court held that since Van Strum carved

out Bivens actions, DW’s claims are time barred even though DW’s claims

are not Bivens claims. The District Court’s interpretation of Van Strum is

overly broad since it essentially held that all constitutional claims are to be

treated similarly to §1983 claims. With all due respect to the District Court,

Van Strum should not be interpreted so broadly. Rather, Van Strum should

be narrowly construed to hold for the limited proposition that Bivens type

actions will be treated similarly to §1983 cause of actions.

Although the Van Strum court carved-out Bivens type actions, it did

not carve out all Fifth Amendment takings claims. It is submitted that the

holding in Marshall still stands for the proposition that there are no other


25

statutes other than the catch-call statute of six years that is applicable for

constitutional causes of action.

It is submitted that the analysis provided for in Marshall is still

applicable to DW’s claims. In this respect, this Court in Marshall

considered three possible statutes of limitation provisions. The first was a

California statute of limitations dealing with actions for personal injuries,

similar to HRS §657-7. The second was a statute of limitations dealing with

statutorily created causes of action, much like HRS §661-5. The third was

California’s catch-all statute similar to HRS §657-1(4). Similar to this case,

the first two statutes would time bar the action. Only the catch-all statute

would preserve the action. This Court expressly held that the statutes of

limitations for personal injury and statutorily created statutes were

inapplicable due to the causes of action being constitutional causes of action.

The Ninth Circuit held that the catch-all statute of six-years would apply.

The District Court erroneously held that DW’s takings claims are

subject to a two-year statute of limitations under HRS § 657-7 because they

are similar to §1983 actions. We respectfully disagree.

As a threshold matter, HRS § 657-7 is the State’s general negligence

statute of limitations. See, Association of Apt. Owners v. Venture 15, Inc.,

115 Haw. 232, 167 P.3d 225 (2007). There has never been any allegation


26

that the actions of the State committed negligence in reverting the land from

urban designation to agricultural. If anything, the actions of the State were

intentional.

As the District Court correctly pointed out and the State conceded,

DW could not have commenced an action under §1983. It is well settled

that when a party cannot commence a constitutional challenge without a

statute, the party may commence a direct action based on violations of the

Constitution itself. When no statute exists to create a private cause of action,

a party can commence suit utilizing an implied cause of action based on

rights contained directly in the Constitution.

In this respect, the District Court held that there is no controlling law

that answers the question as to whether DW could sue the State. However,

the United States Supreme Court in First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, (1987), stated that “it has

been established at least since Jacobs v. United States, 290 U.S. 13 (1933),

that claims for just compensation are grounded in the Constitution itself.”

First English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304, 315 (1987). As such, the Supreme Court made clear that Fifth

Amendment takings claims are direct actions founded upon the Constitution,

which can be brought against the State through the Fourteenth Amendment.


27

In the case at bar, DW’s complaint pleads a takings claim directly

based on the United States Constitution as well as Article I, Section 20 of the

Hawai’i Constitution (ER.97-99), which provides an independent

constitutional cause of action on its own. The plain language of the Fifth

Amendment provides that private property shall not be “taken for public use,

without just compensation.” In the present case, when the Land Use

Commission reverted the property from urban to agricultural designation,

DW had already substantially commenced use of the land and expended

more than $28 million on the project. The LUC committed a taking of

property by reverting the property from urban to agricultural use. As of yet,

no compensation has been paid by the LUC or the State of Hawai’i. As

such, DW’s constitutional right under the Fifth Amendment has been

violated, and this takings claim arising from a violation of a Fifth

Amendment Right is actionable under the Constitution itself. First English

Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315

(1987); Jacobs v. United States, 290 U.S. 13 (1933); San Diego Gas &

Electric Co., 450 U.S. 621, 654-655 (1981).

As the U.S. Supreme Court notes in First English, the self-executing

nature of the just compensation clause to the Fifth Amendment serves to


28

obviate the need for a statutorily created cause of action as seen in §1983

type claims.

The District Court appears to hold that direct constitutional causes of

action arising from a violation of the Fifth Amendment should be treated

identically to §1983 type claims despite the fact that there is no case law that

supports this premise. DW’s constitutional takings claim is not a tortious

personal injury action where an individual’s civil rights have been violated.

Rather, DW sustained damages from the State’s improper reversion of land

from Urban to Agricultural designation because the State violated HRS

§205-4(g) when it reverted the land even though substantial commencement

had begun. As such, the personal injury statute of limitations should not

apply to preclude DW’s constitutional claims.



longer as a matter of policy." Guam Scottish Rite Bodies v. Flores, 486 F.2d

748, 750 (9th Cir. 1973). Thus, the State’s catch-all statute of limitations is

applicable to provide for a six-year statute of limitations in this case.

The instant action was filed within the applicable six-year limitation

period and, accordingly, the constitutional claims are not time-barred.


29

B. HRS §661-5 IS NOT APPLICABLE

The State filed its Motion to Dismiss alleging that HRS §661-5 was

applicable to time-bar only DW’s state constitutional claims. The State

never made any arguments that HRS §661-5 barred DW’s Federal

constitutional takings claims. Despite this fact, the District Court held that

HRS §661-5 was applicable to bar all of DW’s State and Federal claims.

However, the District Court failed to take into account the plain

language of HRS §661-5, which provides as follows:

Every claim against the State, cognizable under this chapter, shall be forever barred unless the action is commenced within two years after the claim first accrues; provided that the claims of persons under legal disability shall not be barred if the action is commenced within one year after the disability has ceased. [Emphasis added] HRS §661-5 created a two-year statute of limitations on claims

against the State, “cognizable” under HRS Chapter 661. To be clear, it is

submitted that the action must be cognizable under HRS Chapter 661 before

HRS §661-5 can be invoked. This is an argument that was rejected by the

District Court in direct contradiction to the holding of the Hawaii Supreme

Court in Kaho’ohanohano v. State, 114 Haw. 302, 162 P.3d 696 (2007). It

is submitted that this Hawaii Supreme Court case is controlling on this issue.

The Hawai’i Supreme Court, in addressing whether HRS § 661-5 is

applicable, provided, in relevant part, as follows:


30

Thus, HRS § 661-5 plainly creates a two-year statute of limitation on "claim[s] against the State, cognizable under [HRS chapter 661.]" The jurisdictional section of HRS chapter 661, HRS § 661-1 (1993), provides:

The several circuit courts of the State and, except as otherwise provided by statute or rule, the several state district courts shall, subject to appeal as provided by law, have original jurisdiction to hear and determine the following matters, and, unless otherwise provided by law, shall determine all questions of fact involved without the intervention of a jury.

(1) All claims against the State founded upon any statute of the State; or upon any regulation of an executive department; or upon any contract, expressed or implied, with the State, and all claims which may be referred to any such court by the legislature; provided that no action shall be maintained, nor shall any process issue against the State, based on any contract or any act of any state officer which the officer is not authorized to make or do by the laws of the State, nor upon any other' cause of action than as herein set forth.

(Emphases added.)

As the State acknowledged in its January 10, 2003 motion for summary judgment, Trustees "are alleging in this lawsuit that Act 100 is unconstitutional as being violative of [a]rticle XVI, [s]ection 2 of the Hawai'i Constitution." (Emphasis added.) Trustees' constitutional claims are plainly not "founded upon any statute of the State; or upon any regulation of an executive department; or upon any contract" and were not "referred to [the] court by the legislature[.]" HRS § 661-1(1); cf. Vail v. Employees' Ret. Sys. of the State of Hawai'i, 75 Haw. 42, 52-57, 856 P.2d 1227, 1233-36, (1993) (concluding that the statute of limitations contained in HRS § 661-5 was applicable to the plaintiff's claim founded upon a state statute, HRS § 88-42 (1993)). Thus, Trustees' claims are not "cognizable under [HRS


31

chapter 661]," HRS § 661-5, and, therefore, are not subject to the statute of limitations set forth in HRS § 661-5. Accordingly, the State's argument is rejected.

In direct contrast to the holding of the District Court, the Hawaii

Supreme Court held that before HRS §661-5 could be invoked to impose a

two year statute of limitations, the claim had to be cognizable under HRS §

661-1. In this respect, the Hawaii Supreme Court held that since the claims

were not founded upon any statute of the state, or upon any regulation of an

executive department, or upon any contract and were not referred to the

court by the legislature, the claims were not cognizable under HRS Chapter

661 and thus HRS § 661-5 could not be invoked to impose a two year statute

of limitations.

Similarly, DW’s claims are not founded upon a statute, upon any

regulation of an executive department or upon any contract and the claims

were not referred to the court by the legislature. There was no automatic

operation of a statute that reverted the land from Urban to Agricultural

designation. There was no regulation that was implemented that reverted

Urban designated land to Agricultural. Rather, it was an inappropriate

decision made by the Land Use Commission that improperly converted

DW’s Urban designated land into Agricultural land. As such, DW’s claims

cannot be deemed cognizable under Chapter 661. Since DW’s claims are


32

not cognizable under Chapter 661, HRS § 661-5 cannot be invoked to limit

DW’s claims to a two year statute of limitations.

It is unrefuted that DW’s state constitutional takings claim arises from

an improper governmental state action, which violated DW’s constitutional

rights under Article I, Section 20 of the Hawai’i Constitution as well as the

Fifth Amendment of the U.S. Constitution. The Land Use Commission’s

decision to revert the land from Urban to Agricultural designation even

though DW substantially commenced development on the land cannot be

said to have been “founded upon any statute of the State; or upon any

regulation of an executive department; or upon any contract” and was not

“referred to [the] court by the legislature”.

Further, the Hawaii Supreme Court in Kaleikini v. Yoshioka, 129

Haw. 454, 304 P.3d 252 (2013) held that claims based on the constitution

are not founded upon any statute of the State citing Kaho’ohanohano v.

State, supra.

As such, DW’s claims, which arise directly from the United States

Constitution cannot be deemed to be based upon any statute of the State to

satisfy the jurisdiction requirements set forth under HRS §661-1.

Moreover, DW’s state constitutional takings claim is not founded

upon any regulation of an executive department. The facts of this case


33

demonstrate that these takings claims are predicated on an improper

reversion of land from urban to agricultural classification by the Land Use

Commission and thus, were not founded upon the adoption of any

regulation. Rather, it was an improper governmental action that violated

DW’s constitutional rights as opposed to the automatic application of a

statute or regulation.

Furthermore, DW’s State Takings claim is not founded on any

contract between DW and the State, since there is no contract. Finally, the

instant matter was not referred to the Court by the Legislature.

Consequently, the jurisdictional section of HRS Title 661 proscribes

conditions before HRS §661-5 can be invoked to preclude DW’s takings

claims.

It is certain that the facts of this case do not meet the threshold

requirements contained in HRS Title 661 to invoke HRS §661-5. Despite

this fact, the District Court erroneously held that DW’s claims are subject to

the two-year statute of limitations under HRS §661-5. We respectfully

disagree since DW’s state Takings claim is not cognizable under HRS

Chapter 661 as per the Supreme Court of Hawai’i’s decision in

Kaho’ohanohano v. State, supra.


34

The District Court relied upon Maunalua Bay Beach Ohana 28 v.

State, 122 Hawai’i 34, 222 P.3d 441 (Haw. Ct. App. 2009) to hold that

DW’s takings claim was subject to a two year statute of limitations. In this

respect, the District Court found that DW’s claims should be treated exactly

like the Plaintiffs in Maunalua Bay Beach Ohana 28. The District Court

considered the fact that DW’s claims and the claims in Maunalua Bay Beach

Ohana 28 involved “inverse condemnation takings” claims without

considering the distinction as to whether the claims were cognizable under

HRS chapter 661. In this respect, the claims in Maunalua Bay Beach Ohana

28 were cognizable under HRS Chapter 661 since the claims were based

upon a passage of a statute, namely Act 73. The impact upon the plaintiffs

and others similarly situated occurred immediately and automatically after

the passage of Act 73. On the other hand, there is no statute in DW’s case

that impacted its rights. Rather, DW’s claims are not cognizable under HRS

Chapter 661.

In Maunalua Bay Beach Ohana 28, the plaintiff owners of oceanfront

property challenged the constitutionality of Act 73, 2003 Haw. Sess. Laws at

128 with respect to accreted land. The alleged takings claim in Maunalaua

Bay Beach Ohana 28 was founded upon a statute, namely “Act 73’s


35

enactment”, as such, the plaintiffs were challenging the constitutionality of a

statute, and thus, that claim was cognizable under HRS Title 661.

This is the central distinction between the facts in Maunalua Bay

Beach Ohana 28 and the instant case, which the District Court found

unpersuasive. The District Court stated that Maunalua Bay Beach Ohana 28

does not stand for the proposition that the cause of action must implicate a

statute for HRS §661-5 to apply. (ER.26) The District Court provides that

the “Intermediate Court of Appeals simply identified the applicable statute

of limitations, Haw. Rev. Stat. §661-5, in a footnote when the court

recognized that the plaintiffs filed the complaint “one day shy of two years

from the date of Act 73’s enactment.” The District Court also provided that

the alleged takings claim in Maunalua Bay Beach Ohana 28 was no more

statutorily based than the present case since DW seeks compensation for

takings that took the form of the Land Use Commission’s reversion of land

to its former land use classification without compliance with the

requirements of Haw. Rev. Stat. §205-4(g). The District Court provided, in

pertinent part, as follows:

“DW’s takings claims, which challenges the Land Use Commission’s compliance with a Hawaii statute, is very much like the claim in Maunalua Bay Beach Ohana 28 challenging Act 73.


36

However, the important distinction is that the plaintiffs in Maunalua

Bay Beach Ohana 28 challenged the constitutionality of Act 73. In this case,

DW did not challenge the constitutionality of Haw. Rev. Stat. §205-4(g).

Actually, the reverse is true, DW maintained that Haw. Rev. Stat. §205-4(g)

is constitutional but the Land Use Commission completely ignored this

statute when it reverted the land from Urban to Agricultural designation. In

this respect, Haw. Rev. Stat. §205-4(g) provides that the “commission may

provide by condition that absent substantial commencement of the use of the

land in accordance with such representations, the commission shall issue and

serve upon the party bound by the condition an order to show cause why the

property should not revert to its former land use classification or be changed

to a more appropriate classification.” DW claims that the Land Use

Commission completely ignored the statute’s language that provides only

“absent substantial commencement of the use of the land” may the

commission issue an order to show cause. In fact, it is DW’s position that

the statute itself is constitutional but the Land Use Commission’s failure to

adhere to the statute itself was improper. On the other hand, in Maunalua

Bay Beach Ohana 28, it was the passage of Act 73 that was being

challenged. In that case, all affected landowners became automatically

subject to Act 73 upon its passage. In this case, this did not occur. Rather, it


37

was the Land Use Commission’s failure to comply with the statute that led

to the takings. As such, contrary to the holding of the District Court, the

facts of Maunalua Bay Beach Ohana 28 are distinguishable. The claim in

Maunalua Bay Beach Ohana 28 arose from a statute, which was cognizable

under HRS Chapter 661, and thus, HRS §661-5 could be invoked.

On the other hand, DW’s claim does not arise from any enactment of

a statute. To be crystal clear, DW is not challenging the constitutionality of

a statute. DW’s only assertion is that an improper governmental action

violated its constitutional rights protected under the Fifth Amendment of the

U.S. Constitution and Article I, Section 20 of the Hawai’i Constitution. By

challenging this governmental action that amounted to a taking without

payment of just compensation, DW’s takings claim arises directly from

Article I, section 20 the Hawai’i Constitution and the Fifth Amendment of

the U.S. Constitution themselves. Since DW’s claim is not founded upon a

statute, regulation or contract, HRS § 661-5 cannot be invoked to impose a

two-year statute of limitations on DW’s claim. Since there are no other

applicable statute of limitations, it is submitted that Hawai’i's catch-all

statute of six years under § 657-1(4) is applicable to DW’s state

constitutional takings claim.


38

Contrary to the arguments raised by the State, it cannot be said that

direct constitutional takings claims are analogous to personal injury actions.

It is submitted that the Courts have already ruled that the six-year catch-all

statute applies to constitutional causes of actions. As such, HRS §657-7 is

not the appropriate statute of limitations to apply to DW’s constitutional

cases but rather, the appropriate statute of limitations is the catch-all

provision under HRS §657-1(4).

CONCLUSION

Consequently, the Plaintiff-Appellant seeks reversal of the District

Court’s Decision, Order, and Judgment.


Respectfully Submitted,

s/ Sang J. Peter Sim By: SANG J. PETER SIM, ESQ.

SIM & RECORD, LLP Appellate Counsels for Plaintiff-Appellant 42-40 Bell Blvd, Suite 602 Bayside, New York 11361 (718) 631-7300 [email protected]


39

STATEMENT OF RELATED CASES

DW and its counsel know of no related cases pending in this Court.


40

CERTIFICATION OF COMPLIANCE

I certify, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C),

that the attached Brief for DW Aina Le’a Development, LLC as Appellant:

(1) complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because this brief contains 8,639 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

(2) complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word in fourteen-point Times New Roman.






41

CERTIFICATION OF SERVICE

I hereby certify that on September 27, 2017, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit through the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECR users

and that service will be accompanied by the appellate CM/ECF system.






plaintiff-appellant’s opening briefno. 17-16280 united states court of appeals for the ninth...

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