The fight over who owns new sand on Hawaii beaches — nearby residents or the government — could be headed to Washington, D.C.

A group of oceanfront landowners has appealed a June decision by the Hawaii Supreme Court to the U.S. Supreme Court, filing what is known as a petition for a writ of certiorari on Sept. 7, a federal docket file shows.

Civil Beat first covered the case — Maunalua Bay Beach Ohana v. Hawaii — in May, when Hawaii’s top court was mulling whether to hear the case.

The Hawaii Supreme Court declined to hear the case in early June, leaving a lower court decision as the law of the land and leaving both parties unsatisfied.

Just weeks later, the U.S. Supreme Court’s ruling in a Florida case relating to beach ownership when the state trucked in sand to fill in its submerged lands gave both Hawaii parties things to chew on. Hawaii Attorney General Mark Bennett pointed to a section of the opinion that states, “The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established” as proof that the ruling would have no impact on the Hawaii case.

Paul Alston, the attorney for the oceanfront landowners, said Florida’s, and the U.S. Supreme Court’s, acknowledgment of the difference between accretion — the gradual growth of beaches — and avulsion — sudden, observable changes to the boundary — is consistent with Hawaii law. He told Civil Beat that he was considering filing an appeal to the U.S. Supreme Court. He’s now done so [pdf].

In asking the U.S. Supreme Court to weigh in, Alston touches on a theory that could have broad impact if espoused by the court. His filing concludes by offering the court an opportunity to establish the legal concept of “judicial takings” that it toyed with in the Florida ruling. If applied, it would make courts, just like legislative and executive branches of government, liable for taking what had once been private property.

A response from the state or input from other parties is due by Oct. 12.1

(hat-tip to Inverse Condemnation)

  1. A previous version of this story incorrectly stated that the U.S. Supreme Court must decide by Oct. 12 whether to hear the case.

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