Hawaiʻi Supreme Court Affirms Zero Compensation for Temporary Taking of Accreted Lands

On September 17, 2025, the Hawaiʻi Supreme Court issued its opinion in Maunalua Bay Beach Ohana 28 v. State, SCWC-19-0000776, addressing whether littoral landowners were entitled to compensation or attorneys’ fees following the Legislature’s 2003 attempt to declare certain accreted beachfront lands public property. The case was argued on January 14, 2025. 

Background 

In 2003, the Legislature enacted Act 73, which declared that all accreted lands not previously awarded were “public lands” and barred private parties from registering or quieting title in them, unless the accretion restored previously eroded land. The purpose was to secure beaches for public trust use and prevent private owners from expanding oceanfront holdings without compensation. 

Three nonprofit corporations organized by Portlock homeowners (the “Ohanas”) had just acquired “beach reserve lots”—narrow strips of land between their homes and the shoreline—from Kamehameha Schools. They sued, claiming Act 73 effected an unconstitutional taking of more than 70,000 square feet of accreted land.  

In 2009, the ICA ruled Act 73 was a taking of existing accreted lands, but not of future accretions. In response, the Legislature passed Act 56 (2012), narrowing the definition of public lands to accreted lands formed after May 20, 2003. 

On remand, the trial court found that the accreted lands had no rental value, awarding zero compensation. It also denied attorneys’ fees, citing sovereign immunity. The ICA affirmed in 2024, and the case reached the Supreme Court on certiorari. 

Legislative Purpose and Intent 

Act 73 reflected two key legislative goals: 

1. Public Trust Protection: The Legislature sought to preserve Hawaiʻi’s beaches for public access, recreation, and customary practices, viewing accreted lands as a natural extension of the shoreline.
2. Clarity of Ownership: Lawmakers aimed to prevent disputes and private appropriation of newly formed beachfront acreage, except where it restored eroded land. 

Supporters emphasized beach access and the public trust. Opponents warned it violated property rights by confiscating accreted land without compensation. Ultimately, the courts agreed with the latter concern.  

Supreme Court’s Decision 

The Court, in an opinion by Chief Justice Recktenwald, affirmed: 

1. Just compensation of $0 was proper because substantial evidence showed the land had no rental value. 
2. Nominal damages were denied because takings claims entitle owners to compensation, not symbolic awards. 
3. Attorneys’ fees are barred by sovereign immunity unless expressly authorized by statute. Article I, section 20 is self-executing for takings claims but does not extend to fee awards. 

Key Takeaways

• Zero compensation is possible where taken property has no market value. 
• No nominal damages are available in takings cases; the constitutional remedy is compensation alone. 
• Attorneys’ fees require statutory authorization; sovereign immunity bars fee awards in inverse condemnation absent legislation. 
• Legislative clarity is critical: Act 73’s overbreadth led to its downfall, while Act 56 attempted a narrower balance between public trust and private rights.