▪ Regulatory Taking of Accreted Beachfront Land

A Hawaii circuit (trial) court, as reported here, has declared that "Act 73," (codifed here and here) which determined that certain land "accreted" on Hawaii's shorelines is "public land," is an "uncompensated taking" of private property. 

The court held that the Act was a "sudden change in the common law," and prevented the littoral owner from registering the property or quieting title.

The common law doctrines of accretion and erosion were generally uniform, and the littoral property owner took the bitter (erosion) with the sweet (accretion): if her property naturally washed away, she lost it; but, conversely, if land naturally accreted on her property, it was hers.  One of the incidentals of owning property next to the ocean or stream.

Act 73 radically altered that balance, determining as a matter of legislative fiat that the State owned accreted land, while not disturbing the usual rules of erosion.  Under Act 73, the littoral owner could not secure title to accreted land, yet continued to lose title to eroded land. 

In other words, "heads the State wins, tails you lose."