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LLC v. State of Hawaii Land USE Commission

United States District Court, D. Hawaii

June 27, 2018

BRIDGE AINA LE'A, LLC, Plaintiff,
v.
STATE OF HAWAII LAND USE COMMISSION; VLADIMIR P. DEVENS, in his individual and official capacity; KYLE CHOCK, in his individual and official capacity; THOMAS CONTRADES, in his individual and official capacity; LISA M. JUDGE, in her individual and official capacity; NORMAND R. LEZY, in his individual and official capacity; NICHOLAS W. TEVES, JR., in his individual and official capacity; RONALD I. HELLER, in his individual and official capacity; DUANE KANUHA, in his official capacity; CHARLES JENCKS, in his official capacity; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 2-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants.

          ORDER DENYING STATE OF HAWAII'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A NEW TRIAL

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         Defendant 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 these requests.

         II. BACKGROUND.

         The 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.

         On 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.

         On 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.

         III. LEGAL STANDARD.

         A. Rule 50(b) (Renewed Motion for Judgment as a Matter of Law).

         If a 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).

         The 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)).

         The 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)).

         B. Rule 59(a) (Motion for a New Trial).

         Rule 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).

         IV. ANALYSIS.

         A. The State Is Not Entitled to Judgment as a Matter of Law.

         The State is not entitled to judgment as a matter of law on any of the grounds put forward in its Renewed Motion.

         1. The State Has Not Identified Evidence Indicating that Bridge Aina Le‘a Possessed Only a Token Property Interest Unaffected by the Reversion.

         The 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.

         According 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 otherwise).

         The 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 adequate evidence.

         The 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.

         The 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.

         The 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))).

         2. Bridge Aina Le‘a Properly Asserted a Temporary Regulatory Takings Claim.

         Bridge 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 without merit.

         The 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.

         Alternatively, 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 constitutional rights.”).

         Finally, 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 immunity”).

         The 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.

         Moreover, 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.

         This 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 guarantee.”).

         The 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.

         First, as noted, Bridge Aina Le‘a's takings claim concerns the effect of an administrative order, not any erroneous fact-finding that preceded it.

         Second, 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, 2015)).

         Third, 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))).

         The State fails to show that it is entitled to judgment as a matter of law on this ground.

         3. The Jury's Finding of a Lucas Taking Is Supported by Adequate Evidence.

         According 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.

         A 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 follows:

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.

         The State asserts five reasons that no Lucas taking occurred as a matter of law. None has merit.

         a. Bridge Aina Le‘a Satisfied Its Burden of Proof Under Lucas with Respect to the Economic Impact of the Reversion.

         According 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 biofuel[)].

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 # 9298.

         The 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 was sufficient.

         When a 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))).

         Of 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”).

         The 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))).

         b. Lucas Claims Are Not Negated by the Existence Of Permissible Uses that Could Generate Revenue Only at a Net Loss.

         According 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 Lucas test.

         According 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”).

         It is 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 landowner ...


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