United States District Court, D. Hawaii
ORDER DENYING STATE OF HAWAII'S RENEWED MOTION
FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A
Oki Mollway United States District Judge.
State of Hawaii Land Use Commission (the “State”
or “Land Use Commission”) has renewed its request
for judgment as a matter of law, alternatively requesting a
new trial. For the reasons that follow, the court denies
factual background of this case has been discussed in the
court's previous orders and is incorporated by reference.
See, e.g., ECF No. 131; ECF No. 283; ECF No. 318.
March 19, 2018, at the close of Bridge Aina Le‘a's
case-in-chief, the State moved for judgment as a matter of
law. ECF No. 361. On March 20, 2018, the court orally granted
the motion in part, agreeing to limit any recovery by Bridge
Aina Le‘a to nominal damages given court rulings
excluding proffered evidence on just compensation.
See ECF No. 365. The court denied the motion in all
other respects. See Id. Ultimately, the jury found
that the State had taken Bridge Aina Le‘a's
property without just compensation under both Lucas
and Penn Central analyses. See ECF No. 373.
The court entered judgment awarding nominal damages to Bridge
Aina Le‘a on March 30, 2018. ECF No. 377.
April 20, 2018, the State filed a Renewed Motion for Judgment
as a Matter of Law or, in the Alternative, for a New Trial
(“Renewed Motion”). ECF No. 385. The State claims
it is entitled to judgment as a matter of law on four
grounds: (1) the Land Use Commission's reversion order
did not affect Bridge Aina Le‘a's limited property
interests; (2) there cannot be a taking stemming from an
erroneous finding of fact by an agency in a quasi-judicial
proceeding; (3) the evidence does not establish a
Lucas taking as a matter of law; and (4) the
evidence does not establish a Penn Central taking as
a matter of law. See Id. at PageID #s 9293-9313. In
the alternative, the State requests a new trial on two
grounds: (1) the court's jury instruction concerning the
appropriate denominator was erroneous; and (2) the verdict is
against the great weight of the evidence. See Id. at
PageID #s 9213-16. Bridge Aina Le‘a filed a Memorandum
in Opposition on May 18, 2018, ECF No. 401, and the State
filed a Reply on June 1, 2018, ECF No. 403.
Rule 50(b) (Renewed Motion for Judgment as a Matter of
portion of party's motion for judgment as a matter of law
is not granted by the court, then, “[n]o later than 28
days after the entry of judgment, . . . the movant may file a
renewed motion for judgment as a matter of law.”
Fed.R.Civ.P. 50(b). “Because it is a renewed motion, a
proper post-verdict Rule 50(b) motion is limited to the
grounds asserted in the pre-deliberation  motion.”
EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961
(9th Cir. 2009); Freund v. Nycomed Amersham, 347
F.3d 752, 761 (9th Cir. 2003).
standard for granting judgment as a matter of law under Rule
50 “mirrors” the standard for granting summary
judgment. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
“A district court can grant a Rule 50 motion for
judgment as a matter of law only if ‘there is no
legally sufficient basis for a reasonable jury to find for
that party on that issue.'” Krechman v. Cty. of
Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (quoting
Jorgensen v. Cassiday, 320 F.3d 906, 917 (9th Cir.
2003)). The moving party must show that the evidence,
construed in the light most favorable to the nonmoving party,
permitted only one reasonable conclusion, and that conclusion
is contrary to jury's verdict. See Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002); Enovsys
LLC v. AT&T Mobility LLC, No. CV 11-5210 SS, 2015 WL
11089498, at *4 n.5 (C.D. Cal. Nov. 16, 2015) (explaining
that “the moving party bears th[is] burden” even
when the non-movant “had the burden [of proof] at
trial” (citing Anderson, 477 U.S. at 250)).
court may not assess the credibility of witnesses and must
draw all reasonable inferences in the nonmovant's favor.
See Krechman, 723 F.3d at 1110. The court's
“job at this stage is not to determine whether the jury
believed the right people, but only to assure that it was
presented with a legally sufficient basis to support the
verdict.” Berry v. Hawaii Exp. Serv., Inc.,
No. 03-00385 SOM/LEK, 2006 WL 1519996, at *2 (D. Haw. May 24,
2006) (quoting Harvey v. Office of Banks & Real
Estate, 377 F.3d 698, 707 (7th Cir. 2004)).
Rule 59(a) (Motion for a New Trial).
59(a) of the Federal Rules of Civil Procedure provides that a
court may grant a new trial “for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1)(A). The court is
“bound by those grounds that have been historically
recognized.” Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1035 (9th Cir. 2003). Precedential grounds for
a new trial include a verdict that “is contrary to the
clear weight of the evidence, is based upon false or
perjurious evidence, or [implicates] a miscarriage of
justice.” Molski v. M.J. Cable, Inc., 481 F.3d
724, 729 (9th Cir. 2007) (quoting Passantino v. Johnson
& Johnson Consumer Prods., Inc., 212 F.3d 493, 510
n.15 (9th Cir. 2000)). In ruling on a motion for a new trial,
“[t]he judge can weigh the evidence and assess the
credibility of witnesses, and need not view the evidence from
the perspective most favorable to the prevailing
party.” Landes Const. Co., Inc. v. Royal Bank of
Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (quoting
Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d
176, 190 (9th Cir. 1989)). A new trial can be granted due to
an erroneous evidentiary ruling only if the ruling
“substantially prejudiced” the complaining party.
Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328
(9th Cir. 1995).
The State Is Not Entitled to Judgment as a Matter of
State is not entitled to judgment as a matter of law on any
of the grounds put forward in its Renewed Motion.
The State Has Not Identified Evidence Indicating that Bridge
Aina Le‘a Possessed Only a Token Property Interest
Unaffected by the Reversion.
Ninth Circuit uses “a two-step analysis to determine
whether a ‘taking' has occurred: first, we
determine whether the subject matter is ‘property'
within the meaning of the Fifth Amendment and, second, we
establish whether there has been a taking of that property,
for which compensation is due.” Engquist v. Oregon
Dep't of Agric., 478 F.3d 985, 1002 (9th Cir. 2007).
This analysis begins with the factual question of what
property rights, if any, a plaintiff owns. See Philips v.
Marion Cty. Sheriff's Office, 494 Fed. App'x
797, 799 (9th Cir. 2012). On this antecedent issue, the court
instructed the jury as follows:
The first step in deciding whether Bridge Aina
Le‘a's property has been taken is to determine what
property rights Bridge Aina Le‘a owns.
Think of property rights as a bundle of sticks. One stick
represents, for example, the right to possess land. One stick
represents the right to use the land. One stick represents
the right to sell one's interest in the land. One stick
represents the right to develop the land, and so on. A person
may possess one stick, but not the whole bundle. Your job is
to determine what sticks Bridge Aina Le‘a owns.
I instruct you that Bridge Aina Le‘a owns the right of
title to the land in issue. You may consider whether Bridge
Aina Le‘a owns any other rights.
Once you have determined what rights Bridge Aina Le‘a
owns, you must consider whether those rights have been taken.
In making your determination, you must consider only Bridge
Aina Le‘a's interests in the property. You may not
base your decision on a determination that the Land Use
Commission's action affected a third party's property
interests, except insofar as the impact on the third
party's interests also materially affected Bridge Aina
Le‘a's interests in the property.
ECF No. 372, PageID #s 7453-54. This instruction was given
with the agreement of the parties.
to the State, the evidence presented at trial is susceptible
to only one reasonable conclusion: that Bridge Aina
Le‘a's property interests were so
“limited” that they could “not [have been]
affected by the reversion” of the 1, 060-acre property
from urban use to agricultural use. ECF No. 385-1, PageID #
9293. In making this argument, the State notes that Bridge
Aina Le‘a “sold the 1, 060 acres and its
development rights to [separate] entities owned by Robert
Wessel[s] prior to the reversion of the property in
2011.” Id. at PageID # 9294 (citation
omitted). If Bridge Aina Le‘a had indeed completely
“sold the property, ” the Land Use
Commission's reversion order presumably could not have
affected Bridge Aina Le‘a's property interests.
Id. But see ECF No. 401, PageID #s 9602-03 (arguing
jury was not persuaded. After deliberating, the jury found
that Bridge Aina Le‘a's property interests were
taken and, in so doing, necessarily determined that Bridge
Aina Le‘a retained more than a token interest in the 1,
060-acre property at the time of the reversion. See
ECF No. 373. The jury's determination is supported by
State's position that Bridge Aina Le‘a “sold
the property” is, absent qualification, factually
unsupported. Nothing in the record indicates that the
property was completely sold. In fact, the State
concedes that Bridge Aina Le‘a owned the
“right of title to the land in issue” at all
relevant times. See ECF No. 385-1, PageID # 9294
(citation omitted). That concession directly contradicts the
State's position that Bridge Aina Le‘a's sale
of the property left it with nothing that could have been
affected by the reversion. See id.
State's real claim seems to be that Bridge Aina
Le‘a sold some of its property interests, and
the remaining interests were not adversely affected by the
Land Use Commission's reversion order. The State refers
to testimony indicating that DW Aina Le‘a, a separate
entity, executed a purchase and sale agreement under which it
“gained possession of the property and had all
development rights prior to the reversion.”
Id. Even taking the State's characterizations of
the record at face value, they support, at most, the
conclusion that Bridge Aina Le‘a sold two sticks out of
its ownership bundle: the right to develop the property and
the right to exclude DW Aina Le‘a. Even assuming that
this conclusion is correct, the jury could have reasonably
concluded that Bridge Aina Le‘a retained other property
rights, including title to the land; the right to exclude
entities other than DW Aina Le‘a; and the right to sell
these residual interests. The jury, moreover, could have
reasonably inferred that the reversion order diminished the
value of Bridge Aina Le‘a's residual interests. For
example, if otherwise barren property cannot be developed, it
is not a stretch to think that the right to exclude someone
from the land is close to worthless.
State has failed to demonstrate an entitlement to judgment as
a matter of law based on the idea that the State had no
property interest affected by the reversion. It has not
identified evidence indicating that Bridge Aina Le‘a
sold its ownership of the property outright, or that its
residual property interests following the transaction with DW
Aina Le‘a were so “limited” as to be immune
from the reversion order, or that the State's view of the
record is the only reasonable view. See Mathis v. Pacific
Gas & Elec. Co., 75 F.3d 498, 501 (9th Cir. 1996)
(“Judgment as a matter of law is appropriate ‘if
the evidence and its inferences considered as a whole and
viewed in the light most favorable to the nonmoving party,
can support only one reasonable conclusion--that the moving
party is entitled to judgment not withstanding the
verdict.'” (quoting Kern v. Levolor Lorentzen,
Inc., 899 F.2d 772, 775 (9th Cir. 1990))).
Bridge Aina Le‘a Properly Asserted a Temporary
Regulatory Takings Claim.
Aina Le‘a's takings claim, which concerns a zoning
order later invalidated in state court, appears to fit
comfortably within the Supreme Court's established
jurisprudence on temporary regulatory takings. See,
e.g., Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1008-14 (1992); First English Evangelical
Lutheran Church v. Los Angeles, 482 U.S. 304, 310, 318
(1987); see also Res. Invs., Inc. v. United States,
85 Fed.Cl. 447, 468-69, 480-84 (2009). The State, however,
argues that takings claims are defective when based on
erroneous findings of fact by administrative agencies that
sit in a “quasi-judicial capacity.” ECF No.
385-1, PageID #s 9294-25. The State's argument is not
entirely clear, but as this court understands it, it is
State may be attempting to mischaracterize Bridge Aina
Le‘a's takings claim. See ECF No. 401,
PageID # 9604. According to the State, the “situation
here is that the Land Use Commission, in reverting the
property, found that there was no ‘substantial
commencement' on the project. . . . The Supreme Court of
Hawaii held that the finding of fact was erroneous. Plaintiff
[wrongly] contends this is a taking.” ECF No. 385-1,
PageID #s 9294-95. But Bridge Aina Le‘a's takings
claim is not simply based on an erroneous factual finding; it
is based on a reversion order issued by the Land Use
Commission. See ECF No. 1-2, PageID #s 44, 48-50;
cf. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
543 (2005) (explaining that an “inquiry” into a
“regulation's underlying validity” “is
logically prior to and distinct from the question whether a
regulation effects a taking”). The State conflates the
reasoning behind the order--the subject of separate
litigation--with the effect of the order itself. It is the
effect of the order that is the focus of takings analysis; if
the Land Use Commission had engaged in the same fact-finding
but decided not to issue the reversion order, there would be
no takings claim. See, e.g., Murr v.
Wisconsin, 137 S.Ct. 1933, 1942 (2017) (asking if
government action “goes too far” and is unduly
“burdensome” in its impact on property, not
whether the action is factually supported and properly
reasoned); cf. ECF No. 385-1, PageID # 9296
(conceding on behalf of the State that “there is no
difference for  takings analysis between the reversion
being upheld or vacated”). There is nothing unusual or
improper about Bridge Aina Le‘a's temporary
regulatory takings claim.
the State may be arguing that agencies should be immune from
takings claims whenever their actions are based on erroneous
findings of fact. See ECF No. 385-1, PageID # 9295.
Neither precedent nor common sense supports such a rule,
which would validate shoddy fact-finding by agencies. Takings
claims can be brought regardless of whether government action
is improperly reasoned or has been judicially nullified.
See First English, 482 U.S. at 318; Res.
Invs., 85 Fed.Cl. at 468-69, 480-84; see also
ECF No. 401, PageID # 9605 (“[T]he LUC cannot leverage
its wrong . . . ‘substantial commencement'
determination into an absolution for violating Bridge's
the State may be attempting to extend to the sovereign the
“quasi-judicial immunity” given to agency
officials “who perform functions closely associated
with the judicial process.” See Bridge Aina
Le‘a, LLC v. State of Hawaii Land Use
Comm'n, 125 F.Supp.3d 1051, 1074 (D. Haw. 2015)
(quoting Duvall v. Cty. of Kitsap, 260 F.3d 1124,
1133 (9th Cir. 2001)); see also ECF No. 401, PageID
# 9603 (so interpreting the State's argument). The law
does not recognize such an extension, as the State appeared
to recognize earlier in this litigation. In its Motion to
Dismiss filed on July 27, 2011, the State, while arguing that
the Land Use Commissioners could invoke
quasi-judicial immunity, seemed cognizant that the liability
of the Land Use Commission (and thus the State) was
governed by a different immunity doctrine. See ECF
No. 14-1, PageID #s 165, 194 (arguing that “the
Commissioners in their individual capacity are entitled to
absolute quasi[-]judicial immunity” and that “the
LUC, as an agency of the State, has sovereign
State's initial understanding was correct. Sovereign
immunity, not quasi-judicial immunity, governs whether State
agencies can be sued for Takings Clause violations. In
extending quasi-judicial immunity to certain “agency
officials, ” the Ninth Circuit has observed
that “[p]ermitting suits against  quasi-judicial
decision makers would discourage knowledgeable
individuals from serving” their government, as
the threat of individual liability might undermine
their “independent and impartial exercise of
judgment.” Buckles v. King Cty., 191 F.3d
1127, 1133, 1137 (9th Cir. 1999) (emphases added) (quoting
Antoine v. Byers & Anderson, Inc., 508 U.S. 429,
435-36 (1993)). These observations do not translate to a suit
against a State agency.
the Ninth Circuit has held that State agencies cannot invoke
sovereign immunity when they are sued in state court for
Takings Clause violations. See Jachetta v. United
States, 653 F.3d 898, 909 (9th Cir. 2011) (explaining
that, under the Takings Clause, a State is constitutionally
“required to provide” just compensation
“notwithstanding sovereign immunity” (quoting
DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir.
2004))). The present action was removed from the state court
it originated in to the federal forum by the State.
See ECF No. 1, PageID # 2.
court will not announce a novel doctrine of
“quasi-judicial sovereign immunity” that would
permit an end-run around this constitutional guarantee.
See ECF No. 401, PageID # 9603 (“The
State's proposed, legally unsupported expansion of
judicial or quasi-judicial immunity to the LUC as an entity,
and therefore to the State itself, would destroy the rights
that the self-executing Takings Clause . . . [is] supposed to
State draws a tenuous analogy between an agency's factual
error and a court's mistaken “findings of fact,
” which the State says cannot “effect[uate] a
taking.” See ECF No. 385-1, PageID # 9295.
This analogy is unhelpful for three reasons.
as noted, Bridge Aina Le‘a's takings claim concerns
the effect of an administrative order, not any erroneous
fact-finding that preceded it.
the State assumes that an open legal question --whether
judicial orders can effectuate takings--will be resolved
against takings plaintiffs. But “[t]he contours and
viability of the theory of so-called ‘judicial
takings'--where a court decision may be deemed to have
effectively taken property rights from an
individual--[remain] unclear even in the courts of this
country.” Jonna Corp. v. City of Sunnyvale,
No. 17-CV-00956-LHK, 2017 WL 2617983, at *6 (N.D. Cal. June
16, 2017) (quoting Eliahu v. Israel, No.
14-cv-01636-BLF, 2015 WL 981517, at *5 n.5 (N.D. Cal. Mar. 3,
even if a court agreed with the State's argument that
judicial takings are impossible, the agreement would almost
certainly be with respect to actual courts. A broader holding
extending to administrative or other nonjudicial actions
would clash with numerous decisions explaining, for example,
that the denial of an individual's permit application can
effectuate a taking. See, e.g., Del Monte Dunes
at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,
1500 (9th Cir. 1990); see also MacLeod v. Santa Clara
Cty., 749 F.2d 541, 544-45 (9th Cir. 1984) (“The
law is well settled  that the application of a general
zoning law to particular property effects a taking if
‘the ordinance . . . denies an owner economically
viable use of his land.” (quoting Agins v. City
of Tiburon, 447 U.S. 255, 260 (1980))).
State fails to show that it is entitled to judgment as a
matter of law on this ground.
The Jury's Finding of a Lucas Taking Is
Supported by Adequate Evidence.
to the State, the evidence at trial failed to show a
Lucas taking. See ECF No. 385-1, PageID #
9296. The jury had good grounds for disagreeing. See
ECF No. 373.
Lucas taking occurs when “a regulation 
‘denies all economically beneficial or productive use
of land.'” Murr, 137 S.Ct. at 1942
(quoting Palazzolo v. Rhode Island, 533 U.S. 505,
617 (2001)). By contrast, there is no Lucas taking
when “a regulation impedes the use of property without
depriving the owner of all economically beneficial
use.” Id. At 1943 (emphasis added); see
also, e.g., Sierra Med. Servs. Alliance v. Kent, 883
F.3d 1216, 1226 (9th Cir. 2018). On the issue of
Lucas takings, this court instructed the jury as
Under Taking Analysis No. 1, you must determine whether the
action of the Land Use Commission, before it was invalidated
in the state courts, denied Bridge Aina Le‘a all
economically beneficial or productive use of its land.
If you find that, while the Land Use Commission's
reversion order was in effect, Bridge Aina Le‘a would
not have been able to make any economically viable use of its
property without a change in the law, you must find for
Bridge Aina Le‘a with respect to Taking Analysis No. 1.
However, if you find that there were permissible uses of
Bridge Aina Le‘a's property even with the
development restriction in place, and if you further find
that those uses were economically beneficial or productive,
then you must find in favor of the Land Use Commission with
respect to Taking Analysis No. 1.
Evidence that the land had positive economic value
notwithstanding the action of the Land Use Commission may be
strong evidence of the availability of economically
beneficial or productive uses. However, a determination that
the land had positive economic value does not, on its own,
necessarily mean that no taking has occurred under Taking
Analysis No. 1. For example, a taking may occur when a
regulation forbids development on a property and no
competitive market exists for that property without the
possibility of development, or if a landowner cannot sell the
property to someone to use in accordance with the regulation.
ECF No. 372, PageID #s 7457-58. This instruction was given
with the agreement of the parties.
State asserts five reasons that no Lucas taking
occurred as a matter of law. None has merit.
Bridge Aina Le‘a Satisfied Its Burden of Proof Under
Lucas with Respect to the Economic Impact of the
to the State, a Lucas plaintiff must present
evidence demonstrating the economic nonviability of every
possible permissible use of its land. See ECF No.
385-1, PageID #s 9298-99. The State claims that Bridge Aina
Le‘a did not meet this burden, because at trial it
“failed to consider” the economic value of
“approximately 200” “unusual uses”
that might be permitted in the agricultural district pursuant
to “special permits.” See Id. Such
“unusual uses” included:
rock quarrying operations; cinder and sand mining facilities;
concrete batching plants; construction waste facilities;
landfills; public and private sewage treatment plants;
gardens and zoos; schools; memorial parks; crematoriums;
agricultural tourism facilities; commercial facilities;
offices; gas stations; solid waste recycling facilities;
private storage facilities; telecommunication facilities and
structures; and power generation facilities (fossil fuel and
renewable, including solar, wind, geothermal, hydropower, and
Id. at PageID #s 9298-99. Bridge Aina Le‘a did
not present evidence specifically addressing the economic
value of each of these potentially permissible uses; the
State claims Bridge Aina Le‘a therefore “failed
to meet its burden of proof of showing the non-existence of
economically beneficial uses.” Id. at PageID #
State would saddle Bridge Aina Le‘a with a Sisyphean
task. Takings law requires less. Bridge Aina Le‘a
presented evidence that a wide variety of potential
permissible uses were not economically viable, including uses
expressly permitted by statute or common or prevalent within
the geographic area. See ECF No. 401, PageID #s
9607-09. Its expert, Bruce Plash, testified that “all
uses permitted in the Agricultural District” by statute
were not economically viable. See Id. at PageID #
9608 (describing Plash's testimony). He also testified
that “there were no agricultural operations on site or
anywhere near the Property.” See Id. Bridge
Aina Le‘a also put forward general evidence concerning
the nature of the land. That evidence indicated that the land
was akin to “a giant asphalt parking lot covered with
big rocks, ” that it had “very poor” soil,
and that it was “not suitable for agriculture.”
See Id. at PageID #s 9607-08 (quoting ECF No.
382-10, PageID #s 7998, 8040). This presentation of evidence
party has the burden of proving a negative, it is not unusual
for a court to accept a less-than-exhaustive showing.
See, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986) (holding that the burden of providing
the absence of genuine issues of material fact may “be
discharged by ‘showing' --that is, pointing out to
the district court--that there is an absence of evidence to
support the nonmoving party's case”); United
States v. Chevron Corp., No. C 94-1885 SBA, 1996 WL
444597, at *3 (N.D. Cal. May 30, 1996) (adopting a
“shared burden” approach to an attorney-client
waiver issue to “alleviat[e] the onerous burden . . .
to prove a negative”). To require more would, in many
circumstances, be to demand the impossible. See
Weimerskirch v. Comm'r of Internal Revenue, 596 F.2d
358, 361 (9th Cir. 1979) (recognizing the
“practical” difficulty of attempting “to
prove a negative” (quoting Elkins v. United
States, 364 U.S. 206, 218 (1960))); United States v.
Fei Lin, 139 F.3d 1303, 1308 (9th Cir. 1998) (noting
“the difficulties inherent in requiring [a party] to
prove a negative” (citing United States v.
Dominquez-Mestas, 929 F.2d 1379, 1384 (9th Cir. 1991))).
course, if a takings defendant believes that a permissible
and economically viable use has been overlooked, it may
present evidence concerning that use. See, e.g.,
Res. Invs., 85 Fed.Cl. at 490. If that presentation
is successful, the plaintiff's Lucas claim will
fail. See, e.g., Sierra Med. Servs.
Alliance, 883 F.3d at 1226 (holding that there was no
Lucas taking because the regulation at issue did not
“require the Plaintiffs ‘to sacrifice
all economically beneficial uses' of their
property” (quoting Lucas, 505 U.S. at
1019-20)). In this case, however, the State put forward no
evidence concerning the economic viability of any alternative
use. It merely observed that “Hawaii law allows owners
of agricultural land to obtain permits for unusual
uses” and that Bridge Aina Le‘a “failed to
consider” them. See ECF No. 385-1, PageID #
9298 (emphasis omitted) (citing Haw. Rev. Stat. §
205-6). The State presented no evidence, whether by expert or
lay testimony, that any of these hypothetical uses
was “economically viable.” See ECF No.
401, PageID # 9606; see also Res. Invs., 85 Fed.Cl.
at 490 (faulting the defendant's failure “to
establish that its proposed alternatives were economically
viable for plaintiffs, i.e., that these uses would
be profitable rather than result in a net loss”).
State's reference to special permits does not, as the
State would have it, “destroy plaintiff's
Lucas claim.” See ECF No. 385-1,
PageID # 9298. Bridge Aina Le‘a's presentation of
evidence concerning the economic nonviability of all
statutorily permitted uses, in combination with the
State's failure to present any evidence
concerning the economic viability of potential
“unusual” uses, adequately supports the
jury's finding of a Lucas taking. Cf. Res.
Invs., 85 Fed.Cl. at 489 (rejecting the defendant's
proffer of “nominal uses” and “uses in
name” only, which “turn out to be mere attorney
argument without support in the record, ” and noting
that “this court is bound to ‘discount proposed
[economically viable] uses that do not meet a showing of
reasonable probability that the land is both physically
adaptable for such use and that there is a demand
for such use in the reasonably near future'”
(alteration in original) (quoting Loveladies Harbor, Inc.
v. United States, 21 Cl. Ct. 153, 158 (1990))).
Lucas Claims Are Not Negated by the Existence Of
Permissible Uses that Could Generate Revenue Only at a Net
to the State, Lucas claims fail if there are any
“permissible uses” that can “generate
revenue and be productive, ” regardless of whether the
uses are also “profitable.” ECF No. 385-1, PageID
# 9297, 9299. The State's proposal makes a nullity of the
to the State, Bridge Aina Le‘a's Lucas
claim should fail in the wake of Bruce Plash's
uncontradicted testimony that some permissible uses in the
agricultural district, like wind farming, could
“generate revenue” while losing money.
Id. at PageID #s 9297-99. But uses resulting in
losses are not automatically “economically
beneficial uses.” See Sierra Med. Servs.
Alliance, 883 F.3d at 1226 (emphasis added) (quoting
Lucas, 505 U.S. at 1019-20)); see also, e.g.,
Murr, 137 S.Ct. at 1943 (describing Lucas
takings as regulations that deprive “the owner of all
economically beneficial use” (emphasis
added)); Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, 535 U.S. 302, 330
(2002) (similar); Palazzolo, 533 U.S. at 617
(similar); Res. Invs., 85 Fed.Cl. at 490 (faulting
the defendant for failing “to establish that its
proposed alternative[ uses] . . . would be profitable rather
than result in a net loss”).
hard to imagine any zoning ordinance that would run afoul of
the State's test. Consider an ordinance that banned the
“construction of occupiable improvements” on
land, see Lucas, 505 U.S. at 1008-09, and also
prohibited living on the land. Even in this highly restricted
situation, there might be some “permissible” uses
that could “generate revenue.” See ECF
No. 385-1, PageID # 9297. The landowner, for example, might
purchase rare Picasso paintings to lay on the land and sell
viewing rights for one dollar. This “Picasso use”
would generate ticket revenue, probably at an enormous net
loss. Under the State's view of Lucas, the