The U.S. Supreme Court has laid to rest, once and for all, the claim of Bridge ʻAina Leʻa that the state of Hawaiʻi owes it money for a temporary taking. That “taking” claim arises from the Land Use Commission’s 2011 decision to revert Bridge’s land in Kohala to the state Agricultural District. A year later, a state court overturned the LUC’s reversion, a judgment that was upheld ultimately by the Hawaiʻi Supreme Court.
Bridge pursued its claim of damages amounting to more than $30 million in federal court. At the district level, the court found Bridge had suffered damages – amounting to $1. At the appellate level, the 9th Circuit determined that even that award was unmerited, meaning that Bridge could not seek to recover its costs of litigation from the state, which the company placed at more than $700,000.
Last July, Bridge appealed to the Supreme Court. On February 22, the Supreme Court denied cert. Justice Clarence Thomas was the sole justice to file a dissent, in which he argued that the precedent-setting Supreme Court cases that addressed takings claims – Penn Central Transportation Co. v. New York City and Lucas v. South Carolina Coastal Council – needed to be clarified by the high court. “The current doctrine is ‘so vague and indeterminate that it invites unprincipled, subjective decision making’ dependent upon the decision-maker,” Thomas wrote, quoting an article by John Echeverria, “Is the Penn Central Three-Factor Test Ready for History’s Dustbin?” published in the UCLA Journal of Environmental Law and Policy (2005).
ʻAina Leʻa Update
Bridge ʻAina Leʻa no longer owns the 1,060-acre tract that was subject to the reversion order, having sold off all but around 27 acres. One of the predecessors to the current owner, ʻAina Leʻa, Inc., also filed a takings claim in federal court. As we reported in January, that case – filed in 2017 by DW ʻAina Leʻa – was initially dismissed on the ground that it was untimely filed.
On appeal, the 9th Circuit Court of Appeals asked the state Supreme Court for a determination on whether a six-year or two-year statute of limitations should be applied. In December, the state Supreme Court ruled that the proper statute of limitations was indeed, as DW ʻAina Leʻa had argued, the more liberal six years, under a “catch-all” provision in the state Constitution.
In light of that ruling, on January 25, the appellate court remanded the case to Honolulu District Court.
Although the state Supreme Court ruling came down in ʻAina Leʻa’s favor, it is still facing existential legal challenges.
Iron Horse Credit, whose loan to ʻAina Leʻa back in 2019 allowed the company to exit bankruptcy, is seeking to foreclose against ʻAina Leʻa. Iron Horse’s most recent court filings show a balance owing of $5,944,530.30 as of January 31.
Iron Horse is asking the 3rd Circuit Court to order the property used to secure the loan be sold at auction. A hearing on the motion is set for April 14.
On February 22, Hawaiʻi County property taxes for 2020 came due. For the 1,000-plus acres owned by ʻAina Leʻa, the 2020 taxes total $224,785. None of that was paid by the deadline.
Those are not the only arrearages. Unpaid property taxes from prior years, plus interest and penalties, on the ‘Aina Le‘a holdings come to $657,459.
— Patricia Tummons
For Further Reading
Environment Hawaiʻi has published many articles over the years on the dispute over the ʻAina Leʻa development. All are available online at our website, environment-hawaii.org.
Articles dealing with the more recent court cases are: