IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · no. 17-16280 in the united states court of appeals for the ninth circuit dw aina le‘a, development, llc, plaintiff-appellant,

No. 17-16280

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DW AINA LE‘A, DEVELOPMENT, LLC,

Plaintiff-Appellant,

v.

STATE OF HAWAI‘I LAND USE COMMISSION, THE STATE OF HAWAI‘I,

and JOHN DOE GOVERNMENTAL UNITS 1-10,

Defendants-Appellees.

On Appeal from the United States District Court for the District of Hawai‘i

Honorable Susan Oki Mollway, United States District Judge

(Civil No. 1:17-cv-00113-SOM-RLP)

DEFENDANTS-APPELLEES’ ANSWERING BRIEF

CERTIFICATE OF SERVICE

DOUGLAS S. CHIN

Attorney General of Hawai‘i

CLYDE J. WADSWORTH

Solicitor General

EWAN C. RAYNER

Deputy Solicitor General

Department of the Attorney General

State of Hawaii

Case: 17-16280, 11/29/2017, ID: 10671586, DktEntry: 16, Page 1 of 50

711354_1 2

425 Queen Street

Honolulu, Hawai‘i 96813

Telephone: (808) 586-1360

E-Mail: [email protected]

Attorneys for Defendants-Appellees


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TABLE OF CONTENTS

INTRODUCTION....................................................................................................1

STATEMENT OF THE ISSUES............................................................................3

STATUTORY AND REGULATORY AUTHORITY .........................................4

STATEMENT OF THE CASE...............................................................................5

SUMMARY OF THE ARGUMENT .....................................................................8

ARGUMENT ......................................................................................................... 11

I. DW’s Federal Takings Claim is Time-Barred.................................... 11

A. State personal injury limitations periods apply to

takings claims brought directly under the United

States Constitution ........................................................................... 11

B. DW’s federal takings claim is time-barred under

Hawaii’s personal injury statute of limitations ............................. 21

II. DW’s State Takings Claim is Time-Barred ........................................ 22

A. The six-year limitations period in HRS § 657-1(4)

does not apply ................................................................................... 22

B. DW’s state takings claim is time-barred under HRS §

661-5................................................................................................... 23

C. DW’s state takings claim is time-barred under HRS §

657-7................................................................................................... 32

CONCLUSION...................................................................................................... 37

CERTIFICATE OF COMPLIANCE ................................................................. 38

STATEMENT OF RELATED CASES............................................................... 39

ADDENDUM



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TABLE OF AUTHORITIES

Hawai‘i Cases

DW Aina Lea, LLC v. Bridge Aina Lea, LLC,

134 Hawai‘i 187, 339 P.3d 685 (2014).................................................................5

Kaho‘ohanohano v. State,

114 Hawai‘i 302, 162 P.3d 696 (2007)............................................ 25, 26, 27, 32

Kaleikini v. Yoshioka,

129 Hawai‘i 454, 304 P.3d 252 (2013).............................................................. 32

Maunalua Bay Beach Ohana 28 v. State,

122 Hawai‘i 34, 222 P.3d 441 (App. 2009)............................................. 9, 24, 25

One Wailea Development, LLC v. Warren S. Unemori Engineering, Inc.,

No. 13-0000418, 2016 WL 2941062 (Haw. App. Apr. 20, 2016) .................... 35

Pele Defense v. Paty,

73 Haw. 578, 837 P.2d 1247 (1992).................................................................. 21

Other Cases

Beckstrand v. Read,

680 F.App’x 609 (9th Cir. 2017) ....................................................................... 21

Bieneman v. City of Chicago,

864 F.2d 463 (7th Cir. 1988) ...................................................................... passim

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971)........................................................................................... 13

DeMalherbe v. International Union of Elevator Constructors,

449 F.Supp. 1335 (N.D. Cal. 1978)............................................................. 20, 35

Eck v. City of Bismarck,

283 N.W.2d 193 (N.D. 1979) ............................................................................ 28


711354_1 iii

Hacienda Valley Mobile Estates v. City of Morgan Hill,

353 F.3d 651 (9th Cir. 2003) ......................................................................... 8, 17

Hager v. City of Devils Lake,

773 N.W.2d 420 (N.D. 2009) .......................................................... 27, 28, 29, 31

Hartman v. Moore,

547 U.S. 250 (2006)........................................................................................... 13

Heffner v. Young,

Nos. 05-15101, 05-15102, 2007 WL 1040327 (9th Cir. Apr. 3, 2007)............. 16

Herman v. City of Chicago,

870 F.2d 400 (7th Cir. 1989) ............................................................................. 17

Hunter v. City of Mobile,

13 So. 2d 656 (Ala. 1943).................................................................................. 30

Levald, Inc. v. City of Palm Desert,

998 F.2d 680 (9th Cir. 1993) ............................................................................. 17

Lizza v. Deutsche Bank National Trust Company,

No. CV 14-16483, 2017 WL 4966734 (9th Cir. Oct. 27, 2017) ....................... 35

Marshall v. Kleppe,

637 F.2d 1217 (9th Cir. 1980) ............................................................... 13, 19, 20

Owens v. Okure,

488 U.S. 235 (1989)........................................................................................... 17

Richmeade, L.P. v. City of Richmond,

594 S.E.2d 606 (Va. 2004) ................................................................................ 29

State ex rel. RTG, Inc. v. State of Ohio,

780 N.E.2d 998 (Ohio 2002) ....................................................................... 29, 30

Van Strum v. Lawn,

940 F.2d 406 (9th Cir. 1991) ...................................................................... passim


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Wilson v. Garcia,

471 U.S. 261 (1985)........................................................................... 8, 11, 12, 14

Hawai‘i Revised Statutes

HRS § 657-1(4)....................................................................................................... 22

HRS § 657-13.......................................................................................................... 34

HRS § 657-7..................................................................................................... passim

HRS § 661-1................................................................................................ 23, 27, 30

HRS § 661-5.................................................................................................... 7, 9, 23

Other State Statutes

N.D. Cent. Code § 28-01-16(1) .............................................................................. 29

Ohio Rev. Code Ann. § 2305.07............................................................................. 30

VA Code Ann. § 8.01-246(4) ................................................................................. 29

Hawai‘i Constitution

Haw. Const. Art. 1, § 20 ................................................................................... 28, 34

Other State Constitutions

N.D. Const. Art. I, § 16........................................................................................... 28

Publications

Black’s Law Dictionary (9th ed. 2009) .................................................................. 35

Waxman & Morrison, What Kind of Immunity? Federal Officers, State Criminal

Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2208 (2003) ................. 14


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DEFENDANTS-APPELLEES’ ANSWERING BRIEF

INTRODUCTION

The inverse condemnation takings claims filed by Appellant DW Aina Le‘a

Development, LLC (DW) under the United States and Hawai‘i Constitutions are

time barred. Without explanation, DW delayed filing a complaint for more than

five years from what DW admits is the latest date its takings claim could have

accrued. However, the applicable statutes of limitation require such claims to be

brought within two years. DW has therefore waited too long. Its lack of diligence

in pursuing its alleged takings claims means those claims are time-barred.

DW’s argument that a six-year limitations period should apply ignores well-

settled federal law that claims brought under the United States Constitution are

subject to the general state statute of limitations for personal injury actions,

regardless of the nature of the constitutional claim. The purpose of this rule is to

provide uniformity and predictability to limitations periods for constitutional

claims. In Hawai‘i, the general statute of limitations for personal injury actions is

Hawai‘i Revised Statutes (HRS) § 657-7, which provides a two-year limitations

period. Under this statute, DW’s federal takings claim is clearly time barred.

Because it concedes that a two-year statute of limitations would bar its

claim, DW has no choice but to argue that the Hawai‘i six-year “catch-all” statute

of limitations also applies to its state takings claim. But this ignores the two


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Hawai‘i statutes – HRS §§ 661-5 and 657-7 – that are applicable to its state takings

claim. The two-year limitations period provided in these statutes is consistent with

the two-year limit for federal takings claims, and any question about which of the

two statutes to apply is academic given that they both provide the same two-year

limitations period. Under either one, DW’s takings claim is time barred. As such,

this court should affirm the District Court’s dismissal of DW’s complaint as barred

by the statute of limitations.


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STATEMENT OF THE ISSUES

I. U.S. Supreme Court and Ninth Circuit decisions dictate that the

applicable statute of limitations for claims brought under section 19831 or directly

under the U.S. Constitution is the state statute of limitations for personal injury

actions, which in Hawai‘i is two years. DW’s federal takings claim is brought

directly under the U.S. Constitution and DW concedes that it filed this action more

than two years after the claim accrued. Is DW’s federal takings claim time-barred?

II. Claims against the State for the recovery of compensation for damage

or injury to property, or that are founded upon any statute of the state, or upon any

implied contract with the State, are subject to two-year statutes of limitation. DW

concedes that its takings claim for damages arose from “the Land Use

Commission’s failure to comply with [a] statute” and that it was filed more than

two years after the claim accrued. Is DW’s state takings claim time-barred?

1 As used in this brief, “Section 1983” refers to 42 U.S.C. § 1983.


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STATUTORY AND REGULATORY AUTHORITY

All relevant statutory authorities appear in the Addendum to this brief.


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STATEMENT OF THE CASE

In 1989, the State of Hawai‘i Land Use Commission (Commission)

reclassified a parcel of land from agricultural to urban, which permitted a

residential development on the land. [ER:83]2 Later, Bridge Aina Le‘a, LLC

(Bridge) purchased the property. [ER:83-84] On December 9, 2008, the

Commission entered an “Order to Show Cause” requiring Bridge to show that it

had substantially complied with conditions to provide affordable housing units

imposed pursuant to the reclassification, and to show why the property should not

be reverted back to agricultural use. [ER:84]

On February 9, 2009, DW entered into a purchase agreement with Bridge,

which gave DW the right to develop the property. [ER:85] After numerous filings

and hearings, the proceedings before the Commission concluded on April 25, 2011

with the Commission reverting the property back to agricultural classification in a

final, written order. [ER:95]

DW and Bridge appealed from the Commission’s final order. [ER:95] On

November 25, 2014, the Hawai‘i Supreme Court ruled that the Commission erred

in reverting the property to agricultural classification without properly following

the procedural requirements of HRS § 205-4. [ER:95]; DW Aina Lea, LLC v.

Bridge Aina Lea, LLC, 134 Hawai‘i 187, 216, 339 P.3d 685, 714 (2014).

2 Appellant’s Excerpts of Record filed on September 27, 2017 is cited as

ER:Page#.


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On February 23, 2017, DW filed a complaint in the Hawai‘i State Circuit

Court of the First Circuit. [ER:81] DW’s sole cause of action was an inverse

condemnation claim brought under the Fifth Amendment of the United States

Constitution and Article 1, Section 20 of the Hawai‘i Constitution. [ER:97-99]

Specifically, DW alleged that the reclassification of the property to agricultural use

constituted a taking of DW’s property without just compensation. [ER:97-99] The

State removed the case to the United States District Court for the District of

Hawai‘i, and then, on March 22, 2017, filed a FRCP Rule 12(b)(6) motion to

dismiss on the grounds that the complaint was not filed within the applicable two-

year statute of limitations. [ER:41-42]

The District Court granted the State’s Motion to Dismiss on June 13, 2017.

[ER:4] The District Court first noted that for federal constitutional claims brought

under section 1983, the U.S. Supreme Court has ruled that the applicable statute of

limitations is the state limitations period for personal injury actions, which in

Hawai‘i is the two-year period in HRS § 657-7. [ER:22-23] The Court then stated

that although DW’s federal takings claim was not brought under section 1983, the

same statute of limitations applies to takings claims whether brought pursuant to

section 1983 or directly under the United States Constitution. [ER:23] Because

the parties all agreed that the latest any takings claim could have accrued was April

25, 2011 (the date of the Commission’s final order reverting the land to


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agricultural use), and that DW’s complaint was not filed until more than five years

later, the District Court found that DW’s “federal takings claim is barred by Haw.

Rev. Stat. § 657-7.” [ER:24]

Regarding DW’s takings claim under the Hawai‘i Constitution, the District

Court found that either HRS §§ 657-7 or 661-5 applies, both of which provide

limitations periods of two years. [ER:33-35] Because the District Court concluded

that it was clear these statutes provided a two-year statute of limitations for a

constitutional takings claims, it rejected DW’s argument that HRS § 657-1(4) – the

Hawai‘i six-year “catch all” statute of limitations – should apply. [ER:34]

On June 13, 2017, the District Court entered judgment in favor of the State,

dismissing DW’s complaint. [ER:36] DW filed its notice of appeal on June 20,

2017.3 [ER:1]

3 The only issue in this appeal is whether DW’s takings claims are time-barred.

The merits of DW’s takings claim are not at issue and have not yet been addressed

by any court, state or federal. Nevertheless, the State is compelled to note that it

strongly disagrees with DW’s assertion in its Opening Brief that “the question of

whether there has been a taking has been settled by the Hawai‘i Supreme Court

and thus, any challenges would be subject to issue preclusion under collateral

estoppel, res judicata and law of the case doctrine.” [OB:11]


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SUMMARY OF THE ARGUMENT

DW’s federal takings claim is time-barred. The District Court correctly

determined that the statute of limitations applicable to DW’s federal takings claim

is the state statute for personal injury actions. The United States Supreme Court

held in Wilson v. Garcia, 471 U.S. 261 (1985), that constitutional claims brought

under section 1983 are subject to state personal injury statutes of limitation. And

in Van Strum v. Lawn, 940 F.2d 406 (9th Cir. 1991), this Court held that the same

rule applies to constitutional claims brought directly under the United States

Constitution. Further, in Hacienda Valley Mobile Estates v. City of Morgan Hill,

353 F.3d 651 (9th Cir. 2003), this Court held that takings claims brought under

section 1983 are subject to state personal injury statutes of limitation. Because this

Court stated in Van Strum that “there should be a single period of limitations for all

suits in which the Constitution applies the remedy,” including both those brought

under section 1983 and those brought directly under the constitution, it follows that

Hawaii’s personal injury statute of limitations applies to DW’s takings claim

brought directly under the United States Constitution.

The Hawai‘i statute of limitations for personal injury actions is HRS § 657-

7, which provides a two-year limitations period. DW and the State agree that the

latest any takings claim could have accrued is April 25, 2011. DW filed its


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complaint more than five years later, on February 23, 2017. Thus, DW’s federal

takings claim is time-barred.

DW’s state takings claim is also time-barred. DW argues that Hawaii’s six-

year catch-all statute of limitations – HRS § 657-1(4) – applies. DW is wrong

because the catch-all statute only applies if no other statute of limitations applies.

There are two other statutes that are applicable to DW’s takings claim, and both

provide a two-year limitations period.

First, HRS § 661-5 is applicable. This statute provides a general two-year

limitations period for claims against the State. DW argues that HRS § 661-5 does

not apply here because it only applies to claims based upon statute, express or

implied contract, or administrative rule, whereas DW’s claim is brought under the

Hawai‘i Constitution. However, in the only Hawai‘i case directly on point –

Maunalua Bay Beach Ohana 28 v. State, 122 Hawai‘i 34, 222 P.3d 441 (App.

2009) – the Hawai‘i Intermediate Court of Appeals applied HRS § 661-5 to an

inverse condemnation claim brought directly under the Hawai‘i Constitution.

Moreover, HRS § 661-5 applies to claims based upon violation of a statute, and

DW admits in its opening brief that “it was the Land Use Commission’s failure to

comply with [a] statute that led to the takings.” [OB:36-37].

DW’s takings claim can also be characterized as based on an implied

agreement with the State to pay just compensation when a taking occurs. This is


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the rule applied by courts in several other states, which apply the implied contract

statute of limitations to inverse condemnation claims. HRS § 661-5 therefore

applies to DW’s State takings claim.

Alternatively, the two-year limitations period in HRS § 657-7 applies to

DW’s state takings claim. HRS § 657-7 provides that “[a]ctions for the recovery

of compensation for damage or injury to persons or property shall be instituted

within two years after the cause of action accrued” (emphases added). DW seeks

compensation for alleged damages and injuries resulting from the taking of its

property. Moreover, application of this statute to DW’s state takings claim is

consistent with federal law, which requires application of the same statute to DW’s

federal takings claim.

Both HRS § 661-5 and HRS § 657-7 provide a two-year limitations period.

The parties here all agree that DW filed its takings claim well over two years after

the claim accrued. As a result, both DW’s federal takings claim and its state

takings claim are time-barred and the District Court properly granted the State’s

Motion to Dismiss.


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ARGUMENT

I. DW’s Federal Takings Claim is Time-Barred

There is no dispute in this case about when DW’s alleged takings claim

accrued. All parties agree the latest date the takings claim could have accrued is

April 25, 2011. There is thus no dispute that under a two-year statute of

limitations, DW”s takings claim is time-barred. The only dispute in this case is

about which statute of limitations applies. DW argues that the Hawai‘i six-year

“catch-all” provision applies. But as explained fully below, federal law is clear

that for takings claims brought either under section 1983 or directly under the

United States Constitution, the applicable statute of limitations is the state statute

for personal injury claims. In Hawai‘i, that statute provides a limitations period of

two years. As such, DW’s federal takings claim is time-barred.

A. State personal injury limitations periods apply to takings claims

brought directly under the United States Constitution

The District Court correctly concluded that takings claims brought directly

under the United States Constitution, like constitutional claims brought under

section 1983, are subject to the state’s personal injury statute of limitations. It is

well settled that all constitutional claims brought under section 1983, regardless of

the nature of the claim, are subject to state personal injury statutes of limitation.

Wilson v. Garcia, 471 U.S. 261, 271-280 (1985). DW’s federal takings claim is


711354_1 12

brought directly under the Fifth Amendment of the United States Constitution.4

But because the rationale in Wilson was to provide a uniform and predictable

statute of limitations for constitutional claims, this Court has held that claims

brought directly under the Constitution must also be subject to the same state

statute of limitations as section 1983 claims.

In Wilson, The United States Supreme Court considered “whether all § 1983

claims should be characterized in the same way for limitations purposes.” Id. at

271. In order to ensure “uniformity, certainty, and the minimization of

unnecessary litigation,” the Court determined that it was necessary to select “in

each State, the one most appropriate statute of limitations for all § 1983 claims.”

Id. at 275 (emphasis added). The Court then considered how best to characterize

all section 1983 claims for limitations purposes. It concluded that “the tort action

for the recovery of damages for personal injuries is the best alternative.” Id. at

276. The Court noted that this was the most appropriate characterization because

“the § 1983 remedy encompasses a broad range of potential tort analogies, from

injuries to property to infringements of individual liberty.” Id. at 277.

4 DW spent significant effort before the District Court arguing that its federal

takings claim cannot have been brought under Section 1983. [ER:120-24] This

was unnecessary because the State, in its Motion to Dismiss, acknowledged that

the claim could not have been brought under section 1983. [ER:54 (“[T]he State

recognizes that this particular taking claim cannot be brought pursuant to § 1983

because the State is not a ‘person’ for purposes of that statute.”)]


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In Van Strum v. Lawn, this Court concluded that Wilson must logically

extend beyond section 1983 cases to claims that are brought directly under the

Constitution. 940 F.2d 406, 410 (9th Cir. 1991). Concluding that Wilson

effectively overruled this Court’s prior precedent in Marshall v. Kleppe, 637 F.2d

1217 (9th Cir. 1980), this Court determined that “there should be a single period of

limitations for all suits in which the Constitution supplies the remedy.” Van Strum,

940 F.2d at 410 (emphasis added) (quoting Bieneman v. City of Chicago, 864 F.2d

463, 469 (7th Cir. 1988)).

Van Strum involved constitutional claims alleging that federal agents had

“flown fixed-wing aircraft and helicopters at low altitudes near [the plaintiffs’]

house resulting in damage to their crops and livestock and causing them

considerable mental and emotional distress.” Id. at 407. The claims were brought

directly under the United States Constitution pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971). Because section 1983 only provides for suits

against state and local officials, the Bivens doctrine allows suits to be brought

against federal officials directly under the Constitution. See Hartman v. Moore,

547 U.S. 250, 255 n.2 (2006) (“Section 1983 applies to state and local officers, and

the Supreme Court in Bivens inferred a parallel damages action against federal

officers.”) (quoting Waxman & Morrison, What Kind of Immunity? Federal


711354_1 14

Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2208

(2003) (alterations omitted)).

This Court in Van Strum examined whether Wilson abrogated Marshall v.

Kleppe, in which this Court had “rejected the application of California’s statute of

limitations applicable to § 1983 actions to claims against federal officials brought

directly under the Constitution.” Van Strum, 940 F.2d at 408. This Court noted

that “were Marshall to govern the action at bar, the applicable statute of limitations

of its Bivens claims would likely be Oregon’s catch-all provision.” Id. However,

this Court held that Wilson did apply, thus overruling Marshall.5 Id. at 409-10. In

holding that Wilson applied not only to section 1983 claims but also claims brought

directly under the Constitution, this Court explained that the holding in Wilson was

not based on the text of section 1983, but rather it was “based on practical concerns

about judicial administration of that statute.” Id. at 409. Specifically, this Court

noted that in Wilson, the Supreme Court was concerned that allowing federal

courts to examine the facts of each case and determine what statute of limitations

best fit on a case-by-case basis “inevitably breeds uncertainty and time-consuming

litigation that is foreign to the central purposes of § 1983.” Id. (quoting Wilson,

471 U.S. at 272).

5 This Court has also explicitly acknowledged that Van Strum overruled Marshall.

See Londono v. U.S. Customs Service, No. 94-56284, 1995 WL 398703, *2 (9th

Cir. July 7, 1995).


711354_1 15

This Court concluded that the same concerns present in Wilson for claims

brought under section 1983 “apply with equal force” to claims brought directly

under the Constitution. Id. at 409. And in regard to which limitations period to

apply, this Court stated that “applying the statute of limitations for personal injury

applies with even greater force to Bivens actions, which come solely from the

provisions of the Constitution protecting personal rights.” Id. at 409-10 (emphasis

added). Thus, this Court held “the personal injury statute of limitations properly

applies to Bivens claims,” id. at 410, which “are identical [to section 1983 claims]

save for the replacement of a state actor under §1983 by a federal actor under

Bivens.” Id. at 409.

Just as Bivens claims are identical to section 1983 claims save for the

replacement of a state actor with a federal actor, DW’s claim in this case is

identical to section 1983 and Bivens claims save for the replacement of a state or

federal actor with the State itself.6 There is no logical reason to depart from this

Court’s holding in Van Strum when the reasoning behind that decision was “the

need for a uniform, generic, easily applicable limitations period within each state.”

Id. at 409. This is particularly true in light of this Court’s statement that “there

should be a single period of limitations for all suits in which the Constitution

6 As the District Court correctly noted, DW could not bring a takings claim against

the State under section 1983, so by necessity it had to bring it directly under the

Constitution. [ER:17-18]


711354_1 16

supplies the remedy.” Id. at 410 (quoting Bieneman, 864 F.2d at 469). Because

this Court made it clear that Wilson’s reasoning applied not only to section 1983

claims, but also claims brought directly under the Constitution, DW’s argument

that Van Strum does not apply here because this is not a section 1983 or Bivens

claim, [see OB at 18-28] necessarily fails. Indeed, this Court has previously

applied Hawaii’s personal injury and injury to property statute (HRS § 657-7) to

direct constitutional claims. See Heffner v. Young, Nos. 05-15101, 05-15102, 2007

WL 1040327, *1 (9th Cir. Apr. 3, 2007) (holding a claim that the Hawai‘i

Department of Land and Natural Resources had violated the Due Process clause by

requiring the plaintiff to allow a public right of way across her property as a

condition for a permit was time-barred under HRS § 657-7).

DW also argues that its takings claim should not be treated similarly to

section 1983 or Bivens claims because its takings claim is “not a personal injury

type of case.” [OB at 18] But DW misapprehends Wilson and Van Strum. The

entire point of the Wilson holding was to create a uniform limitations period for all

§ 1983 claims, which vary in nature from case to case. And the language and

reasoning of this Court in Van Strum make it clear that its holding extends to all

suits in which the Constitution supplies the remedy, not just those that are most

similar to personal injury suits. As this Court noted, the Supreme Court created a

uniform rule by choosing the personal injury statute of limitations for all


711354_1 17

constitutional actions, because it “best emphasized the personal nature of

constitutional wrongs.” Van Strum, 940 F.2d at 409.

That claims do not need to be traditionally “tortious” in nature to fall under

the Wilson rule is exemplified by the fact that this Court has applied the personal

injury statute of limitations to constitutional takings claims brought under section

1983. See Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651,

655 and n.2 (9th Cir. 2003) (holding that regulatory takings claims brought under

section 1983 are subject to the state statute of limitations for personal injury

actions). This Court has also stated that the Wilson rule applies to all claims

brought under section 1983, regardless of the exact nature of the claim. See

Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) (holding

that, after Wilson, the statute of limitations for all section 1983 claims in California

is one year); see also Herman v. City of Chicago, 870 F.2d 400, 402 (7th Cir.

1989) (“Both the Supreme Court, see Owens v. Okure, 488 U.S. 235 (1989), and

this court, see Bieneman v. City of Chicago, 864 F.2d 463, 467-70 (7th Cir.1988),

have resisted all efforts to recharacterize other § 1983 claims–or . . . claims

founded directly on the Constitution–as anything other than personal injury

actions.”).

Because this Court held in Van Strum that the Wilson rule applies not only to

section 1983 actions but also to actions brought directly under the Constitution,


711354_1 18

and in Hacienda Valley Mobile Estates that takings actions brought under section

1983 are subject to the Wilson rule, takings claims brought directly under the

Constitution logically must be subject to the Wilson rule. It would simply make no

sense to require – as DW urges – application of the personal injury limitations

period to takings claims brought under section 1983 but not claims brought directly

under the Constitution, just because takings cases are “not a personal injury type of

case.” [OB at 18] Doing so would defeat the explicit purpose explained in Wilson

and Van Strum of ensuring “a uniform, generic, easily applicable limitations period

within each state” for constitutional claims. Van Strum, 940 F.2d at 409.

The Seventh Circuit decision that this Court relied on in Van Strum –

Bieneman v. City of Chicago – is also highly instructive because the Seventh

Circuit applied Wilson to takings claims brought directly under the Constitution.

The plaintiff in Bieneman alleged “a deprivation of property without due process”

resulting from the City of Chicago operating O’Hare Airport in such a way as to

“intentionally reduce[] the value of his land by propagating noise and the

chemicals in aircraft exhaust.” 864 F.2d at 464. In an attempt to circumvent the

Wilson holding that section 1983 claims must be brought within the personal injury

limitations period (which in Illinois was two years), the plaintiff “insist[ed] that the

takings claim rests on the Constitution rather than § 1983.” Id. at 468. However,

just as this Court did in Van Strum, the Seventh Circuit concluded that the concerns


711354_1 19

that shaped the Wilson rule “apply with equal force to claims invoking the

Constitution directly.” Id. at 469. The Court therefore concluded:

Harmonizing the “direct” suit with the § 1983 suit

requires us to go the rest of the way with Wilson v.

Garcia. The Supreme Court applied the period for

personal injuries to all § 1983 cases, recognizing that

§ 1983 covers many wrongs that states, for domestic

purposes, would classify under different statutes. To

avoid enervating litigation, the period for direct actions

must be the same as the period for § 1983 actions. So

pleading this case as a claim directly under the Takings

Clause leaves Bieneman exactly where pleading it under

§ 1983 would have left him.”

Id. at 470 (emphasis added).

Thus, even though the plaintiff in Bieneman brought the takings claim

directly under the Constitution, it was still subject to the state personal injury

limitations period as if it had been brought under section 1983. Id.

Moreover, even if DW were correct (which it is not, given Van Strum) that

Marshall should still apply to this case, the applicable statute of limitations would

still be two years. In Marshall (which was decided before Wilson), the plaintiff

filed a racial discrimination claim against a federal official directly under the

United States Constitution. Marshall v. Kleppe, 637 F.2d 1217, 1222 (9th Cir.

1980). The Marshall Court applied the general rule that governed at that time:

“When Congress fails to create a federal statute of limitations for federal causes of

action, courts generally apply the statute of limitations of the most analogous cause


711354_1 20

of action under the law of the state in which the federal cause of action arises.” Id.

The Marshall Court relied upon the reasoning of another decision – DeMalherbe v.

International Union of Elevator Constructors, 449 F.Supp. 1335 (N.D. Cal. 1978)

– to hold that the California statute of limitations for personal injury actions did not

apply. Marshall, 637 F.2d at 1223. That statute provided a one-year limitations

period for actions “for injury to one caused by the wrongful act of another.” Id.

The Court in De Malherbe, however, recognized that California courts

traditionally “appl[ied] a statute of limitations dealing with injuries to property or

with trespass to cases that involved taking of private property by public entities in

the exercise of their power of eminent domain and that arose under the state and

federal constitutions.” DeMalherbe, 449 F.Supp. at 1344-45 (emphasis added).

The DeMalherbe court explained that applying that statute to takings cases was

appropriate because the statute “appl[ied] to actions involving a certain type of

injury [i.e., injury to property] regardless of the nature of the liability.” Id. at 1345.

In other words, the court recognized that the statute of limitations most analogous

to constitutional takings claims was the statute dealing with “injuries to property.”

Just as the California courts recognized that the statute dealing with injury to

property was most analogous to constitutional takings claims, HRS § 657-7 is the

most analogous Hawai‘i statute to a takings claim because it provides a statute of

limitations for “[a]ctions for the recovery of compensation for damage or injury to


711354_1 21

. . . property . . . .” Just as the DaMalherbe court described the California statute,

HRS § 657-7 focuses not on the nature of the liability (i.e., tort, statute, or

constitutional), but on the “type of injury” (i.e., injury to property). Thus, it

applies to actions for compensation for damage to property regardless of whether

the injury sounds in tort or in a taking under the Takings Clause.

In addition, there is another Hawai‘i statute that also provides a two-year

statute of limitations – HRS § 661-5 – that is also analogous and would also apply

even if HRS § 657-7 did not. Because this statute is applicable to DW’s State

takings claim, it is discussed in more detail in Part II, below.

B. DW’s federal takings claim is time-barred under Hawaii’s

personal injury statute of limitations

As explained above, DW’s federal takings claim is subject to Hawaii’s

general personal injury statute of limitations. That statute is HRS § 657-7, which

provides that “[a]ctions for the recovery of compensation for damage or injury to

persons or property shall be instituted within two years after the cause of action

accrued[.]” There is no question that this is the applicable general personal injury

statute of limitations. See Pele Defense v. Paty, 73 Haw. 578, 837 P.2d 1247,

1259-60 (Haw. 1992) (holding that “HRS § 657–7 is the ‘general’ personal injury

statute of limitations” that applies to all section 1983 claims); Beckstrand v. Read,

680 F.App’x 609, 610 (9th Cir. 2017) (applying HRS § 657-7 to section 1983

claims).


711354_1 22

DW acknowledges that any takings claim accrued no later than April 25,

2011. [ER:114 (“DW agrees with the State that the claim accrued on April 25,

2011, the date of the Land Use Commission’s Final Order”); OB:12] DW filed its

complaint alleging its takings claim on February 23, 2017, well over two years

after the claim accrued. As a result, DW’s federal takings claim is time-barred.

The District Court therefore correctly dismissed DW’s federal takings claim and

this Court should affirm.

II. DW’s State Takings Claim is Time-Barred

A. The six-year limitations period in HRS § 657-1(4) does not apply

The only statute of limitations that DW argues should apply to its state (or

federal) takings claim is HRS § 657-1(4). [OB:17-18] This provision states that

“[p]ersonal actions of any nature whatsoever not specifically covered by the laws

of the State” are subject to a six-year limitations period. HRS § 657-1(4). This is

Hawaii’s “catch-all” statute of limitations that applies only when no other statute

of limitations applies to the cause of action. [See OB:37] But this catch-all statute

cannot be the appropriate statute of limitations for DW’s takings claim because, as

explained fully below, there are two statutes of limitation that do apply and are

consistent with the limitations period that must be applied to the federal takings

claim: HRS §§ 661-5 and 657-7, which both provide two-year limitations periods.


711354_1 23

Therefore, DW’s takings claims is covered by the laws of the State, and as a result,

HRS § 657-1(4) does not apply.

In addition, DW’s argument that “if a substantial question exists about

which of two conflicting statutes of limitations to apply, the court should apply the

longer as a matter of policy,” [OB:16] is irrelevant because to the extent that there

is any “substantial question” here, it is whether to apply HRS §§ 661-5 or 657-7.

But since both of those statutes supply a two-year limitations period, under either

statute, DW’s takings claim is time-barred.

B. DW’s state takings claim is time-barred under HRS § 661-5

The District Court held that “[u]nder either Haw Rev. Stat. § 661-5 or § 657-

7, DW’s state takings claim is time-barred.” [ER:35] The District Court was

correct that either of these statutes applies. Applying either of these statutes would

also – sensibly – be consistent with this Court’s jurisprudence requiring application

of the same limitations period (i.e., two years under HRS § 657-7) to DW’s federal

takings claim.

HRS § 661-5 provides a general two-year statute of limitations for actions

against the State: “Every claim against the State, cognizable under this part, shall

be forever barred unless the action is commenced within two years after the claim

first accrues[.]” DW argues that HRS § 661-5 only applies if the jurisdictional

requirements of HRS § 661-1 are met. HRS § 661-1 provides that the courts of the


711354_1 24

State have jurisdiction to hear “[a]ll claims against the State founded upon any

statute of the State; upon any rule of an executive department; or upon any

contract, expressed or implied, with the State, and all claims which may be referred

to any such court by the legislature.”

There is one published Hawai‘i case on point, and that case interprets HRS §

661-5 as providing a two-year statute of limitations for inverse condemnation

takings claims brought under the Hawai‘i Constitution. In Maunalua Bay Beach

Ohana 28 v. State, the plaintiff filed an “inverse-condemnation lawsuit” against the

State, alleging that a legislative act – Act 73 – constituted a taking of the plaintiff’s

property without just compensation. 122 Hawai‘i 34, 35-36, 222 P.3d 442-43

(Haw. App. 2009). Discussing the timeliness of the takings lawsuit, the Court

stated that it was filed “one day shy of two years from the date of Act 73’s

enactment.” Id. at 51, 222 P.3d at 458. As authority for the two-year limitations

period, the Court quoted HRS § 661-5, stating that “every claim against the State,

cognizable under this chapter, shall be forever barred unless the action is

commenced within two years after the claim first accrued.” Id. at 51 n.12, 222

P.3d at 458 n.12 (quoting HRS § 661-5). Because this is the only Hawai‘i case

addressing the limitations period for takings claims, it is controlling.

DW’s attempt to distinguish Maunalua Bay is unpersuasive. DW argues

that the claim in Maunalua Bay “was founded upon a statute, namely ‘Act 73’s


711354_1 25

enactment.’” [OB:34-35] Thus, according to DW, because the plaintiff in

Maunalua Bay was “challenging the constitutionality of a statute,” the claim was

founded upon a statute, and for that reason was cognizable under HRS § 661-1.

[OB:35] This is not correct. The plaintiff’s claim in Maunalua Bay was brought

under the State Constitution. No violation of Act 73 was alleged; the claim was

that the enactment of the Act itself was unconstitutional without the payment of

just compensation. See Maunalua Bay, 122 Hawai‘i at 53, 222 P.3d at 460.

Indeed, DW’s attempt to distinguish Maunalua Bay in this manner makes little

sense in light of DW’s reliance on Kaho‘ohanohano v. State, [see OB:29-31]

because Kaho‘ohanohano involved a similar type of claim – an allegation that a

legislative act was unconstitutional. 114 Hawai‘i 302, 162 P.3d 696 (2007).

According to DW, in Kaho‘ohanohano, the claim that a legislative act was

unconstitutional was not founded upon a statute, but in Maunalua Bay, a claim that

a legislative act was unconstitutional was founded upon a statute. DW does not

explain its contradictory reasoning.

Moreover, even if this Court agrees with DW that the takings claim in

Maunalua Bay was “founded upon a statute,” this would mean DW’s claim in this

case is likewise founded upon a statute. In Maunalua Bay, the plaintiff argued that

the legislature’s enactment of a statute constituted a taking of its property without

just compensation. It did not allege a violation of the statute that was at issue.


711354_1 26

Here, however, DW concedes that its takings claim is based on the violation of a

statute, HRS § 205-4. DW states in its Opening Brief: “it is DW’s position that the

statute itself is constitutional but the Land Use Commission’s failure to adhere to

the statute itself was improper.” [OB:36 (emphasis added)] Even more tellingly,

DW acknowledges that unlike in Maunalua Bay, here “it was the Land Use

Commission’s failure to comply with the statute that led to the takings.” [OB:36-

37]

In other words, by DW’s own admission, any takings claim it is able to

establish would not exist but for the violation of HRS § 205-4. Therefore, if DW is

correct that “[t]he claim in Maunalua Bay Beach Ohana 28 arose from a statute,”

[OB:37] then its claim in this case must also arise from a statute. As such, HRS §

661-5 applies.

DW’s reliance on Kaho‘ohanohano v. State is also unpersuasive. That

lawsuit challenged the constitutionality of a statute that allegedly diminished state

retirees’ retirement benefits in violation of the Hawai‘i Constitution, and sought

only declaratory and injunctive relief (unlike this case, in which DW seeks

monetary damages). Id. at 315, 162 P.3d at 709. The Hawai‘i Supreme Court held

that HRS § 661-5 did not apply to the constitutional claims at issue in that case

because they were not “founded upon any statute of the State; or upon any

regulation of an executive department; or upon any contract’ and were not


711354_1 27

“referred to [the] court by the legislature[.]” Id. at 338, 162 P.3d at 732 (quoting

HRS § 661-1).

However, Kaho‘ohanohano does not stand for the proposition that claims

involving an alleged constitutional violation can never be subject to HRS § 661-5.

This was recognized later by the Maunalua Bay Court, which applied 661-5 to

inverse condemnation claims brought under the Hawai‘i Constitution. And while

the Court in Maunalua Bay did not specify why HRS § 661-5 applies to inverse

condemnation claims, there are numerous reasons it should apply here.

First, the nature of the claims in Kaho‘ohanohano and this case are very

different. The constitutional claim in Kaho‘ohanohano did not involve the

violation of a statute, but was a claim that the statute itself “is unconstitutional as

being violative of article XVI, section 2 of the Hawai‘i Constitution.”

Kaho‘ohanohano, 114 Hawai‘i at 338, 162 P.3d at 732. DW, on the other hand,

concedes that its takings claim is based on the violation of a statute. [OB:36-37

(stating that “it was the Land Use Commission’s failure to comply with the statute

that led to the takings.”)]

In addition, HRS § 661-5 is also applicable to DW’s claim because inverse

condemnation claims can be properly characterized as contractual in nature. This

is a rule commonly applied in other states. In Hager v. City of Devils Lake, 773

N.W.2d 420 (N.D. 2009), the plaintiffs brought an inverse condemnation claim


711354_1 28

against a city in North Dakota, alleging a taking resulting from the discharge of

storm water onto their property. Id. at 424. The defendant city argued that the

claim was barred by the statute of limitations. Id. at 432. On appeal, the North

Dakota Supreme Court noted that its “inverse condemnation jurisprudence . . . has

expressly recognized that the right to compensation is premised upon an implied

contract . . . .” Id. (emphasis added).

The Hager Court refused to recognize a distinction between inverse

condemnation claims involving “an actual taking” of land and those resulting from

“injuries to property caused by government action,” id., stating that “the obligation

of the state to pay just compensation to the owner for the taking of or for damages

to his property is, in effect, a contract to compensate for the damages.” Id.

(quoting Eck v. City of Bismarck, 283 N.W.2d 193, 199 (N.D. 1979)). Thus, the

Court in Hager held that “[f]or either a taking case or a non-taking case, an inverse

condemnation action under N.D. Const. Art. I, § 16,[7]

is premised upon the

governmental entity’s implied promise to compensate the owner of property taken

or damaged for public use.” Id. As a result, the Court applied the State’s statute of

7 Article I, section 16 of the North Dakota Constitution states, in relevant part:

“Private property shall not be taken or damaged for public use without just

compensation having first been made to, or paid into court for the owner[.]” This

language is very similar to that used in article I, section 20 of the Hawai‘i

Constitution, which provides: “Private property shall not be taken or damaged for

public use without just compensation.”


711354_1 29

limitations for claims based “upon a contract, obligation, or liability, express or

implied.” Id. (quoting N.D. Cent. Code § 28-01-16(1)).

Similarly, in Richmeade, L.P. v. City of Richmond, the Virginia Supreme

Court applied Virginia’s statute of limitations for implied contracts8 to an inverse

condemnation action. 594 S.E.2d 606, 610 (Va. 2004). The plaintiff brought an

inverse condemnation action and sought damages resulting from the city’s refusal

to vacate a street between two properties owned by the plaintiff. Id. at 607. The

Court determined that the statute of limitations for implied contracts was

appropriate for inverse condemnation claims because “the object of [the

government’s wrongful act] . . . is the injury suffered by [the landowner] because

the City breached its implied contract to pay just compensation.” Id. at 609.

In State ex rel. RTG, Inc. v. State of Ohio, 780 N.E.2d 998 (Ohio 2002), the

Ohio Supreme Court also applied the statute of limitations for actions based on

implied contracts to an inverse condemnation claim very similar to the one at issue

here. In RTG, the plaintiff was a coal-mining company that filed an

“appropriation” claim after the State of Ohio designated a significant portion of the

plaintiff’s property as “unsuitable for mining.” Id. at 1001. The Ohio Supreme

Court stated that “[a]n appropriation case seeks monetary compensation for real

8 Specifically, the Court applied VA Code Ann. § 8.01-246(4), which provides that

“actions upon any unwritten contract, express or implied,” shall be brought within

three years.


711354_1 30

property that was taken from the property owner and for damages to the residue

remaining with the property owner.” Id. at 1004. It then held that “the most

appropriate” statute of limitations for such a claim was the statute that governed

actions “upon a contract not in writing, express or implied, or upon a liability

governed by statute.” Id. at 1005 (quoting Ohio Rev. Code Ann. § 2305.07).

The Supreme Court of Alabama has also held that inverse condemnation

claims are contractual in nature. See Hunter v. City of Mobile, 13 So. 2d 656, 659

(Ala. 1943) (“When private property is either taken or damaged for public

purposes, the Constitution is a guarantee to the owner that he shall have just

compensation therefor. The municipality thus takes or injures the property with the

knowledge of this guarantee and must be held to an implied agreement to abide by

its terms. It is in a sense a constitutional contract made for the benefit of private

property owners[.]”).

Just like the statutes of limitations that applied to inverse condemnation

claims in the cases above, HRS §§ 661-1 and 661-5 provide a limitations period for

claims against the State founded “upon any contract, expressed or implied.” HRS

§ 661-1 (emphasis added). As the courts in Hager, Richmeade, RTG, and Hunter

all held, the obligation to pay just compensation under the takings clause is

essentially an implied contract. This is consistent with how DW describes the

nature of its claim in this case. In its Opening Brief, DW argues that its takings


711354_1 31

claim is not tortious in nature, instead describing it as follows: “Unlike the

tortfeasors in personal injury actions, the State had the power and the right to revert

the land from urban to agricultural designation. However, upon reverting the land

from urban to agricultural designation, the State was required to pay just

compensation to DW.” [OB:20] In other words, DW’s position is that the State

had the right to revert the property’s classification, but was obligated to pay

compensation for doing so. In determining which statute of limitations to apply,

courts must “look to the legal theory undergirding the cause of action.” Hager,

773 N.W.2d 432. And DW’s legal theory appears to be very much contractual in

nature.

Thus, Kaho‘ohanohano does not control here. Kaho‘ohanohano did not

involve a claim for compensation of money damages, unlike this case. DW has

also conceded that unlike in Kaho‘ohanohano, its takings claim is – at least in part

– founded upon the violation of a statute. And finally, an inverse condemnation

claim like DW’s can be characterized as premised upon an implied contract

between the State and the landowner. Therefore, Kaho‘ohanohano is not

controlling and this Court should apply the two-year limitations period in HRS

661-5.

DW’s reliance on Kaleikini v. Yoshioka, 129 Hawai‘i 454, 304 P.3d 252

(2013), to support its argument that HRS § 661-5 does not apply is also misplaced.


711354_1 32

Kaleikini is not controlling because it is not a takings case, and did not even

involve a statute of limitations issue. Citing Kaho‘ohanohano for the proposition

that “claims based on the constitution are not ‘founded upon any statute of the

state,’” Kaleikini, 129 Hawai‘i at 468, 304 P.3d at 266 (quoting Kaho‘ohanohano,

114 Hawai‘i at 338, 162 P.3d at 732), the Hawai‘i Supreme Court in Kaleikini held

that HRS § 661-1 “does not waive the State’s sovereign immunity in this case.” Id.

The Court did not address whether constitutional claims are subject to the statute of

limitations in HRS § 661-5. Indeed, the Court did not even once cite HRS § 661-5.

Finally, even if this Court concludes that Kaho‘ohanohano bars the

application of HRS § 661-5 to this case because it is a constitutional claim,

Kaho‘ohanohano does not compel the conclusion that the six-year catch-all

limitation in HRS § 657-1(4) applies, as DW asserts. This is because, as explained

fully below, Kaho‘ohanohano does not preclude application of HRS § 657-7 to

DW’s claim in this case. And under either HRS §§ 661-5 or 657-7, DW’s takings

claim is time-barred.

C. DW’s state takings claim is time-barred under HRS § 657-7

Even if this Court concludes that HRS § 661-5 is not applicable to DW’s

State takings claim, in the alternative, HRS § 657-7, which provides a two-year

limitations period for claims alleging “damage to persons or property,” applies.


711354_1 33

First, as noted above, even if this Court reads Kaho‘ohanohano as

precluding application of HRS § 661-5 to a constitutional claim, Kaho‘ohanohano

does not preclude the application of HRS § 657-7. The only statute of limitations

argument made in Kaho‘ohanohano was that HRS § 661-5 barred the action. No

party argued that HRS § 657-7 applied, and the Court did not address it. Indeed,

there was no reason the Court would have addressed HRS § 657-7 or any party

would have argued for its application, because it clearly would not have applied.

HRS § 657-7 provides that “[a]ctions for the recovery of compensation for damage

or injury to persons or property shall be instituted within two years after the cause

of action accrued[.]” Kaho‘ohanohano was not an action for the “recovery of

compensation” because it only involved requested declaratory and injunctive relief.

And Kaho‘ohanohano also did not involve “damage or injury to persons or

property” because at issue was the alleged diminishment of state employee

retirement benefits. Thus, the fact that the Court in Kaho‘ohanohano did not apply

a two-year statute of limitations does not preclude HRS § 657-7 from applying to

DW’s takings claim.

HRS § 657-7 encompasses inverse condemnation claims for compensation

under the Hawai‘i Constitution. The statute provides in full: “Actions for the

recovery of compensation for damage or injury to persons or property shall be

instituted within two years after the cause of action accrued, and not after, except


711354_1 34

as provided in section 657-13.”9 Thus, the statute is applicable to actions for the

recovery of compensation for damage or injury to property. The provision of the

Hawai‘i Constitution DW has brought its claim under provides: “Private property

shall not be taken or damaged for public use without just compensation.” Haw.

Const. Art. 1, § 20 (emphases added). Thus, claims under this clause are for

compensation resulting from the taking of or damage to property. The similarity of

the language in article 1, section 20 of the Hawai‘i Constitution and HRS § 657-7

alone is enough to show that the statute is applicable to claims under the takings

clause.

DW’s only arguments that HRS § 657-7 does not apply are that “DW’s

takings claims are not a personal injury type of case,” [OB:18], and that “HRS §

657-7 is the State’s general negligence statute of limitations” which cannot apply

because DW has not alleged any negligence.10

[OB:25-26] DW’s first point is

irrelevant, and the second is incorrect.

First, it is irrelevant that DW’s takings claim is not a “personal injury type of

case,” because HRS § 657-7 applies not only to personal injury actions but also

9 HRS § 657-13 relates to the accrual date of a cause of action when the claimant

was a minor, insane, or imprisoned. As such, it is not relevant here. 10

Numerous times in its Opening Brief, DW refers to “HRS § 667-7.” [See

OB:13, 18, 21]. HRS § 667-7 was a statute relating to foreclosures, which was

repealed in 2012. The State therefore assumes that DW means HRS § 657-7 in

these instances.


711354_1 35

actions for the “recovery of compensation for damage or injury to . . . property.”

HRS § 657-7 (emphasis added). DW seeks compensation for injury to its property,

and thus HRS § 657-7 is applicable.11

Second, HRS § 657-7 is not limited to negligence claims as DW suggests.

There is nothing in the statute that purports to limit it to negligence claims. Rather,

as the court in DeMalherbe (discussed earlier) noted, statutes such as this dealing

with injuries to property “apply to actions involving a certain type of injury [i.e.,

injury to property] regardless of the nature of the liability.” DeMalherbe, 449

F.Supp. at 1345 (alteration added). Indeed, this Court and Hawai‘i courts have

applied HRS § 657-7 to causes of action that were not based on negligence. See,

e.g., Lizza v. Deutsche Bank National Trust Company, No. CV 14-16483, 2017

WL 4966734, at *1 (9th Cir. Oct. 27, 2017) (applying the limitation period in HRS

§ 657-7 to an intentional interference with prospective economic advantage claim

based on an alleged wrongful foreclosure); One Wailea Development, LLC v.

Warren S. Unemori Engineering, Inc., No. 13-0000418, 2016 WL 2941062, *15,

*21 (Haw. App. Apr. 20, 2016) (applying HRS § 657-7 to “the intentional tort of

tortious interference with prospective business advantage”).

11

“Injury” is defined as “[t]he violation of another’s right, for which the law

provides a remedy; a wrong or injustice.” Black’s Law Dictionary, 856 (9th ed.

2009). “Damage” is defined as “[l]oss or injury to person or property.” Id. at 445.


711354_1 36

DW argues that it has not alleged that the State was negligent and that “[i]f

anything, the actions of the State were intentional.” [OB:26] Even if that is true, it

is apparent from the plain language of HRS § 657-7 and the cases applying it that

intentional conduct is still subject to the statute’s two-year limitation period.

Both HRS §§ 661-5 and 657-7 provide two-year limitations periods for

claims that fall under those sections. As explained above, either statute is

applicable here. And to the extent that this Court believes there is any “substantial

question” as to which statute of limitations to apply, as DW argues, it need not

definitively determine which of these statutes applies because both provide the

same limitations period. DW concedes that its takings claim accrued at the latest

on April 25, 2011, the date of the Commission’s Final Order, [ER:114; OB:12] and

that it filed its complaint more than two years later, on February 23, 2017.

[OB:12] As such, DW’s takings claim is time-barred under either statute.


711354_1 37

CONCLUSION

For the reasons stated above, this Court should affirm the District Court’s

order granting the State’s motion to dismiss, and the District Court’s Judgment

dismissing DW’s Complaint.

DATED: Honolulu, Hawai‘i, November 29, 2017.

Respectfully submitted,

s/ Ewan C. Rayner

EWAN C. RAYNER


Attorney for Defendants-Appellees State of

Hawai‘i Land Use Commission; State of

Hawaii


711354_1 38

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitations of Fed. R.

App. P. 32(a)(7)(B) because it contains 8,285 words, excluding portions exempted

by Fed. R. App. P. 32(f).



s/ Ewan C. Rayner

EWAN C. RAYNER




Hawaii


711354_1 39

STATEMENT OF RELATED CASES

Defendants-Appellees are not aware of any related cases.



s/ Ewan C. Rayner

EWAN C. RAYNER




Hawaii


711354_1 1

ADDENDUM


711354_1 2

TABLE OF CONTENTS

Haw. Rev. Stat. § 657-1 3





711354_1 3

Haw. Rev. Stat. § 657-1

§657-1 Six years. The following actions shall be commenced within six

years next after the cause of action accrued, and not after:

(1) Actions for the recovery of any debt founded upon any contract,

obligation, or liability, excepting such as are brought upon the judgment or decree

of a court; excepting further that actions for the recovery of any debt founded upon

any contract, obligation, or liability made pursuant to chapter 577A shall be

governed by chapter 577A;

(2) Actions upon judgments or decrees rendered in any court not of record

in the State, or, subject to section 657-9, in any court of record in any foreign

jurisdiction;

(3) Actions for taking or detaining any goods or chattels, including actions

in the nature of replevin; and

(4) Personal actions of any nature whatsoever not specifically covered by

the laws of the State.


§657-7 Damage to persons or property. Actions for the recovery of

compensation for damage or injury to persons or property shall be instituted within

two years after the cause of action accrued, and not after, except as provided in

section 657-13.


§661-1 Jurisdiction. The several circuit courts of the State and, except as

otherwise provided by statute or rule, the several state district courts, subject to

appeal as provided by law, shall have original jurisdiction to hear and determine

the following matters, and, unless otherwise provided by law, shall determine all

questions of fact involved without the intervention of a jury:

(1) All claims against the State founded upon any statute of the State; upon

any rule of an executive department; or upon any contract, expressed or implied,

with the State, and all claims which may be referred to any such court by the

legislature; provided that no action shall be maintained, nor shall any process issue

against the State, based on any contract or any act of any state officer that the


711354_1 4

officer is not authorized to make or do by the laws of the State, nor upon any other

cause of action than as herein set forth; and

(2) All counterclaims, whether liquidated or unliquidated, or other demands

whatsoever on the part of the State against any person making claim against the

State under this part.


§661-5 Limitations on action. Every claim against the State, cognizable

under this part, shall be forever barred unless the action is commenced within two

years after the claim first accrues; provided that the claims of persons under legal

disability shall not be barred if the action is commenced within one year after the

disability has ceased.


711354_1 1


I hereby certify I electronically filed the Defendants-Appellees’

Answering Brief with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system on November 29,

2017.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: Honolulu, Hawai‘i, November 29, 2017


s/ Ewan C. Rayner

EWAN C. RAYNER




Hawaii


Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · no. 17-16280 in the united states court of appeals for the ninth circuit dw aina le‘a, development, llc, plaintiff-appellant,