DW Aina Le'a Development, LLC v. State of Hawaii and its Land Use Commission

Filing 17

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS re: #5 . Signed by JUDGE SUSAN OKI MOLLWAY on 6/13/2017. (afc) WRITTEN ORDER follows hearing held May 15, 2017. Minutes of hearing: ECF no. #15 .CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DW AINA LE’A DEVELOPMENT,
LLC,

)
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII, LAND USE
)
COMMISSION; STATE OF HAWAII
)
and DOE GOVERNMENTAL UNITES
)
1-10,
)
Defendants.
_____________________________ )

CIVIL NO. 17-00113 SOM-RLP
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
I.

INTRODUCTION.
Before the court is Defendant 1 State of Hawaii’s motion

to dismiss Plaintiff DW Aina Le’a Development, LLC’s Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

Motion to Dismiss, ECF No. 5.

This court dismisses

DW’s federal and state takings claims as time-barred.
II.

FACTUAL BACKGROUND.
This case concerns the classification of over 1,000

acres of land in South Kohala on Hawaii Island.
No. 1-2, PageID # 9.

Complaint, ECF

In 1989, the State’s Land Use Commission

reclassified the land from agricultural to urban to allow the
development of almost 2,000 homes, with facilities and
1

In a footnote, the State notes, “[T]he State of Hawaii
and its Land Use Commission are one entity and one defendant for
purposes of this litigation.” ECF No. 5, PageID # 35.
1

amenities, as part of a residential community.

Id.

The

reclassification was subject to various conditions, including a
condition that a certain percentage of the housing units be
affordable.

Id.

From 1990 until 2008, the Land Use Commission amended
and revised the original order’s affordable housing condition
several times, working with various successor landowners and
developers, including DW.

Id., PageID #s 9-11.

In 2008, the

Commission issued an order to show cause why the land should not
revert back to an agricultural classification because of the
developer’s alleged failure to timely comply with certain
conditions.

Id., PageID # 11.

On April 25, 2011, after several

years of proceedings and DW’s acquisition of development rights
for the land, the Commission ordered the land reverted from its
urban classification back to its original agricultural use.
Id., PageID #s 11-21.
The landowners and developers, including DW, sought
judicial review of the Commission’s decision.

Id., PageID # 21.

The Hawaii Supreme Court ultimately consolidated the cases and
held that the Land Use Commission “erred in reverting the land
without complying with the requirements of HRS § 205-4 because
the land owners had substantially commenced use of the land in
accordance with the representations they had made to the
2

Commission.”

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

134 Haw. 187, 190, 339 P.3d 685, 688 (2014).

The court observed

that, by the time the land was reverted to agricultural use, DW
“had substantially commenced use of the land in accordance with
[its] representations” to the Commission and had spent more than
$20 million on the project.

Id. at 191, 339 P.3d at 689.

On February 23, 2017, DW filed its Complaint in the
First Circuit Court for the State of Hawaii seeking just
compensation from the State for the alleged regulatory taking.
Complaint, ECF No. 1-2.

The State removed the case to federal

court and then filed the present motion to dismiss.
Removal, ECF No. 1; Motion to Dismiss, ECF No. 5.
held on May 15, 2017.
III.

Notice of
A hearing was

See ECF No. 15.

STANDARD OF REVIEW.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review is generally limited to the
contents of a complaint.

Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996).

If matters outside the pleadings

are considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.

See Keams v. Tempe Tech. Inst., Inc., 110

F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932,
934 (9th Cir. 1996).

However, the court may take judicial
3

notice of and consider matters of public record without
converting a Rule 12(b)(6) motion to dismiss into a motion for
summary judgment.

See Emrich v. Touche Ross & Co., 846 F.2d

1190, 1198 (9th Cir. 1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

WMX Techs., Inc. v.

Miller, 197 F.3d 367, 372 (9th Cir. 1999).

However, conclusory

allegations of law, unwarranted deductions of fact, and
unreasonable inferences are insufficient to defeat a motion to
dismiss.

Sprewell, 266 F.3d at 988; In re Syntex Corp. Sec.

Litig., 95 F.3d 922, 926 (9th Cir. 1996).
12(b)(6) may be based on either:

Dismissal under Rule

(1) lack of a cognizable legal

theory, or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533-34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted); accord Ashcroft v. Iqbal, 556 U.S.
4

662, 678 (2009) (“[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”).

“While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Twombly, 550 U.S. at 555

(internal citations omitted).

The complaint must provide

“enough facts to state a claim to relief that is plausible on
its face.”

Id. at 570.

“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
IV.

Iqbal, 556 U.S. at 678.

ANALYSIS.
DW seeks monetary damages from the State for the

alleged taking of property without payment of just compensation
in violation of Article I, section 20 of the Hawaii
constitution, as well as the Fifth Amendment to the United
States Constitution.

Complaint, ECF No. 1-2, PageID # 25.

The

State seeks dismissal of the “takings-inverse condemnation”
claims, arguing that they are barred by the applicable statutes
5

of limitations.

Memorandum in Support of Motion to Dismiss, ECF

No. 5-1, PageID #s 40-41.
A.

This Court Has Subject Matter Jurisdiction Over
the Federal Takings Claim.

This court first considers whether the federal takings
claim is ripe for review.

Ripeness “is drawn both from Article

III limitations on judicial power and from prudential reasons
for refusing to exercise jurisdiction.”

Reno v. Catholic Soc.

Servs., Inc., 509 U.S. 43, 57 n.18 (1993); Portman v. Cty. of
Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (“The ripeness
inquiry contains both a constitutional and a prudential
component.”).

Article III ripeness is jurisdictional, while

“[p]rudential considerations of ripeness are discretionary.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1142
(9th Cir. 2000) (en banc).
Under Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172 (1985), a federal regulatory
takings claim does not ripen until two prongs are satisfied.
Under the first prong, a plaintiff must establish that “the
government entity charged with implementing the regulations has
reached a final decision regarding the application of the
regulations to the property at issue.”

Id. at 186.

Under the

second prong, a plaintiff must show that “the owner has
unsuccessfully attempted to obtain just compensation through the
6

procedures provided by the State for obtaining such
compensation.”

Id. at 195.

This court recently opined in a related case on
whether a federal takings claim is ripe for judicial review
under Williamson County when a case is removed to federal court.
In that related case, the plaintiff had filed a complaint in
state court seeking, among other things, just compensation for
the alleged regulatory taking relating to the reversion of the
land in issue here to agricultural use.

Bridge Aina Le’a, LLC

v. Haw. Land Use Comm’n, 125 F. Supp. 3d 1051, 1054-55, 1057 (D.
Haw. Aug. 25, 2015).

The defendants removed the case to federal

court before a determination of just compensation had occurred
in state court.

Id. at 1057.

In addressing a motion to dismiss

brought by the defendants in that case, this court wrote:
To the extent any Defendant is found liable
to Bridge for a taking, no determination of just
compensation has yet occurred such that Bridge
could claim that any compensation is inadequate.
The absence of such a determination does not
necessarily mean that this court is barred from
considering Bridge’s takings claims. The Supreme
Court has referred to the Williamson County state
exhaustion requirement as prudential rather than
jurisdictional. See Suitum v. Tahoe Reg’l
Planning Agency, 520 U.S. 725, 733 (1997); see
also Guggenheim v. City of Goleta, 638 F.3d 1111,
1117-18 (9th Cir. 2010). Although the Ninth
Circuit treats ripeness as implicating both
Article III and prudential considerations, see
Guatay Christian Fellowship v. Cnty. of San
Diego, 670 F.3d 957, 980 (9th Cir. 2011), it has
recognized that the Williamson County ripeness
7

requirements are discretionary when the case
“raises only prudential concerns,” as is the case
here. Adam Bros. Farming v. Cnty. of Santa
Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010).
This court has the discretion to consider
Bridge’s takings claim if warranted by “the
fitness of the issues for judicial decision and
the hardship to the parties of withholding court
consideration.” Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1141-42 (9th Cir. 2000).
This court notes that Bridge’s takings
claims have been pending in this court for years.
See Yamagiwa v. City of Half Moon Bay, 523 F.
Supp. 2d 1036, 1109 (N.D. Cal. 2007) (finding
hardship when parties had litigated case for two
years and decision would soon issue). Both
parties point to Defendants’ removal of this case
in addressing Bridge’s federal takings claims.
See ECF No. 88, PageID #s 1172-73; ECF No. 89,
PageID # 1182. Although other circuits have
determined that the Williamson County state
exhaustion requirement does not apply to cases
that have been removed to federal court, see
Sherman v. Town of Chester, 752 F.3d 554, 564 (2d
Cir. 2014); Sansotta v. Town of Nags Head, 724
F.3d 533, 545-47 (4th Cir. 2013), it does not
appear that the Ninth Circuit has opined on the
matter. Cf. Alpine Vill. Co. v. City of McCall,
No. 1:11-CV-00287-BLW, 2011 WL 3758118, at *2-3
(D. Idaho Aug. 25, 2011) (applying state
exhaustion requirement in removed case). This
court does not decide this issue here.
Id. at 1061 n.3.
In a separate but related order addressing the
defendants’ motion for summary judgment, this court applied the
second prong of Williamson County, concluding:
Under
ripened on
the second
procedures

Williamson, Bridge’s takings claims
June 7, 2011, when Bridge satisfied
prong by availing itself of state
for seeking just compensation. On
8

that date, Bridge filed its Complaint in state
court, which included its state and federal
takings claims.
The first prong of Williamson was earlier
satisfied on April 25, 2011, when the LUC entered
an order adopting the proposed findings of fact,
conclusions of law, and decision and order
reverting the land to its agricultural use
classification.
Bridge Aina Le’a, LLC v. Haw. Land Use Comm’n, Civ. No. 11-00414
SOM-BMK, 2016 WL 797567, at *7 (D. Haw. Feb. 29, 2016).
The State did not specifically raise the issue of
ripeness in its moving papers in the present case, and this
court, noting that DW had not been a party to the earlier
related case, offered the parties a chance to address any
potential jurisdictional issues.

Both DW and the State took the

position that there was no jurisdictional bar to this court’s
proceeding, and asked this court to go forward with the hearing.
This court has satisfied itself that it has subject
matter jurisdiction over this case and that the federal takings
claim is ripe for review.
No determination has occurred with respect to what, if
any, just compensation DW is entitled to.

As this court has

previously opined on the issue of ripeness, “The absence of such
a determination does not necessarily mean that this court is
barred from considering [DW’s] takings claims.”
Le’a, LLC, 125 F. Supp. 3d at 1061 n.3.
9

See Bridge Aina

The Williamson County

state exhaustion requirement raises prudential concerns and does
not implicate this court’s Article III subject matter
jurisdiction.

See Suitum v. Tahoe Reg’l Planning Agency, 520

U.S. 725, 734 n.7 (1997) (describing Williamson County
requirements as “prudential hurdles” distinct from Article III
jurisdictional requirements).

This court therefore may exercise

its discretion to consider the alleged takings claims if
warranted by “the fitness of the issues for judicial decision
and the hardship to the parties of withholding court
consideration.”

Thomas, 220 F.3d at 1141-42.

The Ninth Circuit has not expressly opined on whether
the second prong of Williamson County is satisfied when a
defendant removes a takings claim from state court to federal
court.

The circumstances of this case make it particularly

appropriate for this court to address the takings claims now.
First, although the present case has not been pending for very
long, the takings claims stem from actions that occurred many
years ago.

In Sherman v. Town of Chester, 752 F.3d 554, 564 (2d

Cir. 2014), the Second Circuit noted that the “removal maneuver
prevents [plaintiff] from litigating his federal takings claim
until he finishes litigating his state law claim for
compensation” and from “pursuing both claims simultaneously.”
Second, if this court were to dismiss the federal takings claim
10

as not yet ripe under Williamson County, DW might well be
constrained in later litigating its federal takings claim.

That

is, if the removed federal claim were dismissed for lack of
subject matter jurisdiction and the state claim ended up being
adjudicated by either a state or federal court, the resulting
judgment might have a collateral estoppel effect on the federal
claim.

The only alternative would be the costly option of

piecemeal litigation.

See San Remo Hotel, L.P. v. City & Cty.

of San Francisco, 545 U.S. 323 (2005); Sansotta v. Town of Nags
Head, 724 F.3d 533, 545 (4th Cir. 2013) (“[R]efusing to apply
the state-litigation requirement in this instance ensures that a
state or its political subdivision cannot manipulate litigation
to deny a plaintiff a forum for his claim.”).
Here, the State, which raises no ripeness argument,
cannot be said to be manipulating the litigation so as to deny
DW a forum for its federal takings claim.

If this court were to

nevertheless decline to hear the takings claim, DW could be
prejudiced.
Given the court’s concern that the federal takings
claim deserves a forum, this court determines that consideration
of the federal takings claim is warranted and prudent.

This

court therefore exercises its discretion to consider the federal
takings claim.
11

B.

The State Waived Sovereign Immunity by Removing
This Action to Federal Court.

Before turning to the sufficiency of DW’s federal
takings allegations, this court notes that the State waived its
sovereign immunity by removing the instant action to federal
court.

The Eleventh Amendment provides that the “Judicial power

of the United States” shall not be construed to extend to any
suit commenced against one of the states by its own citizens.
U.S. Const., amend. XI; Hans v. Louisiana, 134 U.S. 1 (1890).

A

state may waive its Eleventh Amendment immunity from suit.
Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S.
613, 624 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir.
2004).

A state does so when it removes a case to federal court,

regardless of the type of claim (federal or state) asserted.
Embury, 361 F.3d at 566.

Removal results from a “voluntary

invocation of a federal court’s jurisdiction” sufficient to
waive immunity.

Lapides, 535 U.S. at 624.

The Supreme Court

has explained:
It would seem anomalous or inconsistent for a
State both (1) to invoke federal jurisdiction,
thereby contending that the “Judicial power of
the United States” extends to the case at hand,
and (2) to claim Eleventh Amendment immunity,
thereby denying that the “Judicial power of the
United States” extends to the case at hand.
Id. at 622.

12

The State voluntarily invoked this court’s
jurisdiction by removing this case from state court.

The State

appears to agree that it waived sovereign immunity, as it does
not mention the Eleventh Amendment in its moving papers.

Having

determined that this court has subject matter jurisdiction and
that the State has waived sovereign immunity, the court turns to
the sufficiency of the takings allegations.
C.

DW’s Federal Takings Claim.
1.

DW’s Federal Takings Claim Is Not Brought
Pursuant to 42 U.S.C. § 1983.

Section 1983 states in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory . . . subjects, or causes to
be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and
laws, shall be liable . . . .
42 U.S.C. § 1983.
To succeed on a § 1983 claim, a plaintiff must show
that a person acted under color of state law and deprived the
plaintiff of rights secured by the Constitution or federal
statutes.
Cir. 2006).

Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th
What is clear is that states are not persons for

purposes of § 1983.

Arizonans for Official English v. Arizona,

520 U.S. 43, 69 (1997).

The Supreme Court noted:

13

We observe initially that if a State is a
“person” within the meaning of § 1983, . . . .
[t]hat would be a decidedly awkward way of
expressing an intent to subject the States to
liability. At the very least, reading the
statute in this way is not so clearly indicated
that it provides reason to depart from the oftenexpressed understanding that “in common usage,
the term ‘person’ does not include the sovereign,
[and] statutes employing the [word] are
ordinarily construed to exclude it.” Wilson v.
Omaha Tribe, 442 U.S. 653, 667 (1979) (quotations
omitted) . . . . This common usage of the term
“person” provides a strong indication that
“person” as used in § 1983 likewise does not
include a State.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).
“Since this Court has construed the word ‘person’ in a § 1983
action to exclude States, neither a federal court nor a state
court may entertain a § 1983 action against such a defendant.”
Howlett v. Rose, 496 U.S. 356, 376 (1990).
In its moving papers, the State notes that DW’s
federal takings claim “cannot be brought pursuant to § 1983
because the State is not a ‘person’ for purposes of that
statute.”

ECF No. 5-1, PageID # 47; Reply, ECF No. 14, PageID

# 166-67.

DW concedes that “it is undisputed that DW is legally

prohibited from commencing a § 1983 action against the State of
Hawaii or the Land Use Commission since the State can never be
deemed a ‘person’ under § 1983.”

Id., PageID # 92; see also

Will, 491 U.S. at 66 (holding that “neither a State nor its
officials acting in their official capacities are ‘persons’
14

under § 1983”).

DW thus does not bring its federal takings

claim pursuant to § 1983.
2.

Even If DW May Assert Its Federal Takings
Claim Against the State Directly Under the
Fifth Amendment of the United States
Constitution, DW’s Federal Takings Claim Is
Time-Barred.

DW asserts that its federal takings claim is
necessarily brought “directly” under the United States
Constitution, precisely because 42 U.S.C. § 1983 is
inapplicable.

Memorandum in Opposition, ECF No. 12,

PageID #s 86, 92-94.

This court agrees that DW may proceed

directly under the Constitution.

In so stating, this court is

not overlooking the Ninth Circuit’s repeated statements that
“[t]akings claims must be brought under § 1983.”

Hacienda

Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 655
(9th Cir. 2003); Golden Gate Hotel Ass’n v. City & Cty. of San
Francisco, 18 F.3d 1482, 1486 (9th Cir. 1994) (“[A]ll claims of
unjust taking [ha]ve to be brought pursuant to Section 1983”
(citing Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d
704, 705 (9th Cir. 1992))); see, e.g., also Daniel v. Cty. of
Santa Barbara, 288 F.3d 375, 378 (9th Cir. 2002) (concerning
§ 1983 claim “alleging a violation of the Takings Clause of the
federal Constitution”).

In short, the Ninth Circuit has held

that a plaintiff has no takings claim directly under the United
15

States Constitution.

Azul-Pacifico, Inc., 973 F.2d at 705.

These cases, however, notably involved alleged takings by
municipalities, not states.
A federal takings claim against a state falls within a
murky area of the law.

On the one hand, the Ninth Circuit has

clearly held that a plaintiff is required to bring a federal
takings claim under § 1983 and has no cause of action directly
under the Takings Clause of the Fifth Amendment, which provides,
“[N]or shall private property be taken for public use, without
just compensation.”

See id.

On the other hand, a plaintiff

cannot bring a federal takings claim under § 1983 against a
state because a state is not a “person.”
64.

See Will, 491 U.S. at

This dichotomy raises the question of whether a plaintiff

can sue a state or state entity for an alleged regulatory taking
at all.
Although the Eleventh Amendment may have been the
foundation for judicial holdings that a state is not a “person”
for purposes of § 1983, the scope of liability under § 1983 and
the scope of the Eleventh Amendment are “separate issues,” even
if closely related.

Will, 491 U.S. at 64.

The ultimate issue

in the statutory inquiry is whether a specific statute provides
for a state to be sued, whether in state or federal court.

The

ultimate issue in the Eleventh Amendment inquiry is whether an
16

unconsenting state can be sued in federal court under a specific
statute.

Vt. Agency of Nat. Res. v. Stevens, 529 U.S. 765, 779

(2000).
This court has found no case indicating that a state
may be sued under § 1983 based on its waiver of sovereign
immunity.

See Will, 491 U.S. at 64.

Indeed, some courts have

reasoned that “even if the state waives its Eleventh Amendment
immunity in a § 1983 action, it is still not subject to suit
because it is not a ‘person’ under § 1983.”

Osterloh v. ARDC,

No. 8:CV-95-00001, 1996 WL 885548, at *3 n.3 (D. Neb. Apr. 22,
1996); see also Jude v. Morrison, 534 F. Supp. 2d 1365, 1369
(N.D. Ga. 2008) (dismissing § 1983 claims against defendants in
their official capacities because they were not persons, not
because of Eleventh Amendment immunity).
This court is left with the question of whether a
federal takings claim against a state may indeed be brought
directly under the Constitution, because disallowing such action
would leave an aggrieved landowner with no federal remedy.
There is no clear answer in controlling law.

See Spoklie v.

Montana, 411 F.3d 1051, 1058 (9th Cir. 2005) (declining to
address “whether a state may be sued for damages under the
Takings Clause of the Fifth Amendment in the absence of its
consent”).

Compare First English Evangelical Lutheran Church v.
17

Cty. of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (finding that,
notwithstanding “principles of sovereign immunity,” the
Constitution “dictates” a damages remedy in takings cases, but
not specifically addressing whether suits against states for
damages may be maintained in takings cases consistent with the
Eleventh Amendment), with Broughton Lumber Co. v. Columbia River
Gorge Comm’n, 975 F.2d 616, 619-20 (9th Cir. 1992) (applying
Eleventh Amendment to takings claim against state).
Fortunately for this court, it need not determine
whether or when a state may be sued in federal court directly
under the United States Constitution.

DW clearly raises a

federal question by asserting an unconstitutional taking in
violation of the Fifth Amendment.

Especially given the State’s

waiver of any Eleventh Amendment immunity, the complicated legal
issue discussed above goes to whether DW states a claim, not to
whether this court has subject matter jurisdiction.
Even if DW may pursue federal takings claims directly
under the Constitution, such claims are time-barred.

This time

bar is so clear from the Complaint that the State justifiably
raises its affirmative defense at the earliest opportunity in
this case.
The State asserts that either Haw. Rev. Stat. § 657-7
or Haw. Rev. Stat. § 661-5 applies to DW’s federal takings
18

claims.

ECF No. 5-1, PageID #s 46-49.

Both statutes impose a

two-year period within which to assert claims.

Under either

statute of limitations, DW’s federal takings claim is timebarred.
In Wilson v. Garcia, 471 U.S. 261, 276, 280 (1985),
the United States Supreme Court held that § 1983 claims are best
characterized as tort actions for personal injuries and that
federal courts must borrow the statute of limitations governing
personal injury actions in the state in which the action is
brought.

The Court reaffirmed this rule in Owens v. Okure, 488

U.S. 235, 249-51 (1989).

To the extent a takings claim is akin

to a § 1983 claim, the tort limitations period applies.

See

Hacienda Valley Mobile Estates, 353 F.3d at 655 (applying
California statute of limitations for personal injury torts to
plaintiff’s takings claim under § 1983).
The Ninth Circuit has recognized that § 1983 claims
and Bivens claims are both “claims invoking the Constitution
directly by a practical concern.”
F.2d 406, 410 (9th Cir. 1991).

See Van Strum v. Lawn, 940

This court similarly recognizes

that there is no substantive distinction between a federal
regulatory takings claim brought against a city, county, or
municipality under § 1983 and a federal regulatory takings claim
that might be brought against a consenting state entity directly
19

under the federal Constitution.

Any federal regulatory takings

claim seeks monetary damages arising from some regulatory action
that allegedly violated a plaintiff’s rights under the Fifth
Amendment’s Takings Clause.

There is no reason that a § 1983

takings claim against a city should be subject to a limitations
period shorter or longer than a takings claim against a state.
A § 1983 claim is subject to Hawaii’s two-year tort statute.
See Pele Def. Fund v. Paty, 73 Haw. 578, 595, 837 P.2d 1247,
1259 (1992).

A federal takings claim, whether brought under

§ 1983 or directly under the Constitution, should be subject to
the same limitations period.
Pursuant to Haw. Rev. Stat. § 657-7, personal injury
actions are subject to a two-year limitations period.

That

statute provides, “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.”

This “general

personal injury” provision applies to § 1983 actions.

Pascual

v. Matsumura, 165 F. Supp. 2d 1149, 1151 (D. Haw. 2001); see
also Pele Def. Fund, 73 Haw. at 595, 837 P.2d at 1259 (“We hold
that the two-year statute of limitations set forth in HRS § 6577 governs § 1983 actions.”).

It therefore follows that this

20

general personal injury statute of limitations applies to
actions brought against a state for an alleged taking.
The Land Use Commission reached a final decision
regarding the alleged regulatory taking when it entered its
order on April 25, 2011, returning the land to an agricultural
use classification.

For purposes of the present motion, the

parties concede that the date any takings claim accrued is April
25, 2011.

ECF No. 5-1, PageID #s 43; ECF No. 12, PageID # 86.

That is, the parties look to the date of the Land Use
Commission’s final decision, not to the date of any court
decision addressing the Land Use Commission’s action.

DW first

availed itself of state procedures for seeking just compensation
on February 23, 2017, when it filed the now-removed Complaint in
state court.

Because DW’s Complaint was filed over two years

from the date of the Land Use Commission’s decision, which the
parties agree is the date the limitations clock started ticking,
its federal takings claim is barred by Haw. Rev. Stat. § 657-7.
Alternatively, “[w]hen Congress has not established a
time limitation for a federal cause of action, the settled
practice has been to adopt a local time limitation as federal
law if it is not inconsistent with federal law or policy to do
so.”

Wilson, 471 U.S. at 266-67.

DW’s claim allegedly arises

under the Takings Clause, which contains no limitations period.
21

This court therefore looks to the most appropriate or analogous
state limitation period.

See id.

Section 661-5 is an alternate limitations statute
applicable to DW’s federal takings claim.

See Maunalua Bay

Beach Ohana 28 v. State, 122 Haw. 34, 51 n.12, 222 P.3d 441, 458
n.12 (Ct. App. 2009) (applying Haw. Rev. Stat. § 661-5 to
landowner’s inverse condemnation action challenging
constitutionality of act relating to ocean-front land
accretion).

That statute also provides for a two-year

limitations period: “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 accrues.”
Chapter 661 is titled “Actions by and Against the State,” and
Haw. Rev. Stat. § 661-1 vests state courts with jurisdiction to
hear:
(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 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
22

part of the State against any person making claim
against the State under this part.
Haw. Rev. Stat. § 661-1.
DW contends that Maunalua Bay Beach Ohana 28 is
distinguishable because it stands “for the proposition that
before invoking HRS § 661-5, the action must be founded on a
statute, regulation or contract.”

ECF No. 12, PageID #s 89-90.

DW says that the constitutionality of a statute was being
challenged in Maunalua Bay Beach Ohana 28, and it was that
statutory issue that rendered Haw. Rev. Stat. § 661-5
applicable.

Id., PageID # 89.

DW suggests that, because DW’s

claim does not “arise” from any statute, regulation, or
contract, Haw. Rev. Stat. § 661-5 does not apply.

Id.,

PageID # 90.
The distinction DW draws is unpersuasive.

First,

Maunalua Bay Beach Ohana 28 does not stand for the proposition
that the cause of action must implicate a statute for Haw. Rev.
Stat. § 661-5 to apply.

The Intermediate Court of Appeals

simply identified the applicable statute of limitations, Haw.
Rev. Stat. § 661-5, in a footnote when the court recognized that
the plaintiffs filed the complaint “one day shy of two years
from the date of Act 73’s enactment.”

See Maunalua Bay Beach

Ohana 28, 122 Haw. at 51 n.12, 222 P.3d at 458 n.12 (relying on
statute of limitations set forth in Haw. Rev. Stat. § 661-5 and
23

observing when plaintiffs filed complaint).

The footnote does

not establish that only statutory challenges fall within section
661-5.
Second, the alleged takings claim in Maunalua Bay
Beach Ohana 28 is no more statutorily based than the present
case.

The Intermediate Court of Appeals noted, “In their

underlying complaint, Plaintiffs claimed that Act 73 took their
right to future accretions and thereby violated article I,
section 20 of the Hawaii State Constitution.”

Maunalua Bay

Beach Ohana 28, 122 Haw. at 53, 222 P.3d at 460.

That is, the

plaintiffs sought just compensation for the alleged regulatory
taking in violation of the Hawaii State Constitution based on
the effect of Act 73 on their property rights.

Thus, Maunalua

Bay Beach Ohana 28 involved an inverse condemnation regulatory
takings claim, just as this case does.
DW seeks just compensation for an alleged regulatory
taking in violation of the Hawaii constitution and United States
Constitution.

The taking complained of took the form of the

Land Use Commission’s reversion of land to its former land use
classification without compliance with the requirements of Haw.
Rev. Stat. § 205-4(g).

See DW Aina Le’a Dev., LLC, 134 Haw. at

191, 339 P.3d at 689.

DW’s takings claims, which challenges the

Land Use Commission’s compliance with a Hawaii statute, is very
24

much like the claim in Maunalua Bay Beach Ohana 28 challenging
Act 73.
Given the similarity of DW’s claim to the claim in
Maunalua Bay Beach Ohana 28, this court concludes that Haw. Rev.
Stat. § 661-5 is an alternative statute of limitations
applicable to DW’s federal takings claim.

Section 661-5 imposes

a two-year period within which to assert claims.

Because DW

filed its Complaint more than two years after the accrual date
of April 25, 2011, that claim is time-barred under section 6615.
DW argues that the six-year “catch-all statute” in
Haw. Rev. Stat. § 657-1(4) applies to its federal takings claim.
ECF No. 12, PageID # 100.

That statute applies to cases “of any

nature whatsoever not covered by the laws of the State.”
Analogizing its direct constitutional claim to a Bivens-type
cause of action, DW relies on Marshall v. Kleppe, 637 F.2d 1217
(9th Cir. 1980), and Tamura v. FAA, 675 F. Supp. 1221 (D. Haw.
1987).
In Marshall, the Ninth Circuit held that a corporation
could maintain a direct civil rights claim under the Fifth
Amendment and that such a claim fell under California’s fouryear catch-all statute of limitations.
However, Marshall is no longer good law.

637 F.2d at 1224.

25

See Londono v. U.S.

Customs Serv., 60 F.3d 833 (9th Cir. 1995) (recognizing that
Marshall was overruled by Van Strum).
In Van Strum, the Ninth Circuit considered the Supreme
Court’s decision in Wilson v. Garcia, 471 U.S. 261 (1985),
superseded by statute as stated in Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 382 (2004), which held that § 1983
claims were best characterized as personal injury tort actions
such that a governing state personal injury statute of
limitations applied.

Van Strum, 940 F.2d at 408-10.

Contrary

to its analysis and decision in Marshall, the Ninth Circuit
concluded that a state’s personal injury statute of limitations
applied to “claims invoking the Constitution directly by a
practical concern,” including both § 1983 and Bivens claims.
Id. at 410.
Recognizing that actions under § 1983 and Bivens “are
identical save for the replacement of a state actor under § 1983
by a federal actor under Bivens,” id. at 409, the Ninth Circuit
adopted the reasoning of the Seventh Circuit, as well as the
Sixth and Second Circuits, which had applied Wilson to direct
suits under the Constitution:
There is no reason to have a different period of
limitations, and a strong reason not to: any
difference would give the plaintiff an incentive
to pick whichever jurisdiction provided the
longer period, recreating the uncertainty that
the Supreme Court sought to eliminate. We
26

conclude, therefore, that there should be a
single period of limitations for all suits in
which the Constitution supplies the remedy.
Id. at 410 (quoting Bieneman v. City of Chicago, 864 F.2d 463,
469 (7th Cir. 1988)); see also Chin v. Bowen, 833 F.2d 21, 23-24
(2d Cir. 1987); McSurely v. Hutchinson, 823 F.2d 1002, 1004-1005
(6th Cir. 1987).

Accordingly, the Ninth Circuit held that a

state’s personal injury statute of limitations applied to Bivens
claims.

Van Strum, 940 F.2d at 410.
DW also relies on Tamura v. FAA, 675 F. Supp. 1221 (D.

Haw. 1987), in arguing that a six-year limitations period
applies to its federal takings claim.

Issued before Van Strum,

Tamura applied Marshall’s reasoning in determining that Hawaii’s
catch-all statute of six years, Haw. Rev. Stat. § 657-1(4), did
not bar the plaintiffs’ constitutional claims, or “Bivens type
actions.”

Id. at 1224-25.

Because Van Strum overruled Marshall

several years after Tamura was decided, this court does not
adopt the reasoning of Tamura.
In sum, this court concludes that either Haw. Rev.
Stat. § 657-7 or Haw. Rev. Stat. § 661-5 applies to DW’s federal
takings claim against the State.

Under either of these

provisions, DW failed to timely assert its claim. 2

2

Accordingly,

Neither party presents any reason for tolling the
statute of limitations, and this court sees nothing in the
record that supports such tolling.
27

to the extent DW states a plausible federal takings claim, DW’s
federal claim against the State is dismissed as time-barred.
D.

DW’s State Takings Claim.
1.

The Court Has Supplemental Jurisdiction Over
the Remaining State Takings Claim.

Supplemental jurisdiction over state-law claims exists
when a federal claim is sufficiently substantial to confer
federal jurisdiction, and there is “a common nucleus of
operative fact between the state and federal claims.”

Brady v.

Brown, 51 F.3d 810, 816 (9th Cir. 1995) (citing Gilder v. PGA
Tour, Inc., 936 F.2d 417, 421 (9th Cir. 1991)); see also 28
U.S.C. § 1367.

This court may decline to exercise supplemental

jurisdiction over a state law claim if:

(1) the claim raises a

novel or complex issue of state law; (2) the state law claim
substantially predominates over the claim or claims over which
the district court has original jurisdiction; (3) the district
court has dismissed all claims over which it has original
jurisdiction; or (4) in exceptional circumstances, there are
other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367.
Supplemental jurisdiction is a doctrine of discretion,
not of a plaintiff’s right.

City of Chicago v. Int’l Coll. of

Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966); Maltzman v. Friedman, 103
28

F.3d 139 (9th Cir. 1996) (“[T]he doctrine of supplemental
jurisdiction is a flexible one, giving a district court the
power to exercise supplemental jurisdiction over a claim and the
discretion whether to exercise such jurisdiction.”).

Generally,

when, as here, “the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well.”
726.

Gibbs, 383 U.S. at

Although the Supreme Court later noted that such a

dismissal is not “a mandatory rule to be applied inflexibly in
all cases,” it also recognized that, “in the usual case in which
all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine--judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the
remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 n.7 (1988).
The present case is not the usual case in which the
court, having disposed of any federal claim, should decline to
exercise supplemental jurisdiction.

Having ruled on various

motions in a related case arising out of the same facts and
circumstances as this case, this court is very familiar with the
various takings issues.

See Bridge Aina Le’a, LLC v. Haw. Land

Use Comm’n, 125 F. Supp. 3d 1051 (D. Haw. Aug. 25, 2015); Bridge
29

Aina Le’a, LLC v. Haw. Land Use Comm’n, Civ. No. 11-00414 SOMBMK, 2016 WL 797567 (D. Haw. Feb. 29, 2016).

This court also

notes that the Complaint was removed, not filed directly in
federal court.

Dismissing or remanding the state takings claim

would delay resolution of an already aged claim; dismissal would
have the added detriment of requiring DW to pay a new filing fee
if, pursuant to 28 U.S.C. § 1367(d), it decided to refile its
state claim in state court.

Under the present circumstances,

the balance of judicial economy, convenience, fairness, and
comity weighs in favor of this court’s exercise of supplemental
jurisdiction over the remaining state takings claim.
2.

DW’s State Takings Claim Is Time-Barred.

The State argues that all claims asserted against it
are generally subject to a two-year limitations period.
5-1, PageID # 44.

ECF No.

Section 661-5 provides, “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[.]”

The State asserts that any takings claim

brought against it falls within this general rule.
PageID # 44.

ECF No. 5-1,

Under Haw. Rev. Stat. § 661-5, DW’s state takings

claim is time-barred.
As discussed in the previous section, the Intermediate
Court of Appeals referred to Haw. Rev. Stat. § 661-5 as the
30

appropriate statute of limitations in an inverse condemnation
claim brought under state law.

See Maunalua Bay Beach Ohana 28,

122 Haw. at 51 n.12, 222 P.3d at 458 n.12.

As noted in this

court’s discussion of the federal takings claim, the takings
issues in this case are very similar to those in that case.
This court has also already rejected DW’s arguments for
distinguishing Maunalua Bay Beach Ohana 28 from this case.
Under Haw. Rev. Stat. § 661-5, DW had two years, beginning on
April 25, 2011, to assert its state takings claim against the
State.

Because DW waited more than five years to assert its

state takings claim, that claim is time-barred.
Alternatively, as noted above with respect to the
federal takings claim, Haw. Rev. Stat. § 657-7 also imposes a
two-year limitation period.

ECF No. 5-1, PageID # 45.

The

State observes that “compensation” appears in both Haw. Rev.
Stat. § 657-7 as it pertains to damage to property, and in
Article I, section 20 of the Hawaii constitution, which
provides, “Private property shall not be taken or damaged for
public use without just compensation.”
For the same reasons discussed above with respect to
the federal takings claim, this court rejects DW’s contention
that the six-year limitation in Haw. Rev. Stat. § 657-7 applies
to its state takings claim.

ECF No. 12, PageID # 104.
31

Under either Haw. Rev. Stat. § 661-5 or § 657-7, DW’s
state takings claim is time-barred.
V.

CONCLUSION.
The motion to dismiss is granted.

DW’s federal and

state takings claims are dismissed.
The Clerk of Court is directed to enter judgment for
the State and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 13, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
DW Aina Le’a Development, LLC v. State of Hawaii, Land Use Commission; State
of Hawaii and DOE Governmental Units 1-10, Civ. No. 17-00113 SOM-RLP; Order
Granting Defendant’s Motion to Dismiss.

32