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

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Electronically Filed
Supreme Court
SCCQ-XX-XXXXXXX
17-DEC-2020
07:50 AM
Dkt. 71 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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DW AINA LE‘A DEVELOPMENT, LLC,
Plaintiff-Appellant,

vs.

STATE OF HAWAI‘I LAND USE COMMISSION; STATE OF HAWAI‘I,
Defendants-Appellees.

SCCQ-XX-XXXXXXX

ORIGINAL PROCEEDING

DECEMBER 17, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

The United States Court of Appeals for the Ninth

Circuit has asked us to determine the statute of limitations for

a takings claim brought under the Hawai‘i Constitution. In

response, we hold that the statute of limitations for a

regulatory taking is six years, pursuant to the catch-all
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statute of limitations in Hawai‘i Revised Statutes (HRS) § 657-

1(4).

II. BACKGROUND

On March 11, 2019, the United States Court of Appeals

for the Ninth Circuit certified a question of Hawai‘i law to this

court pursuant to HRS § 602-5(a)(2) (Supp. 2016) and Hawai‘i

Rules of Appellate Procedure (HRAP) Rule 13, asking us to

resolve the following question:

What is the applicable statute of limitations for a claim
against the State of Hawai‘i alleging an unlawful taking of
“[p]rivate property . . . for public use without just
compensation,” Haw. Const. art. 1, § 20?[ 1]

Parties and amicus curiae advocate three different

positions on this question: the State of Hawai‘i Land Use

Commission and other defendants (collectively LUC) argue that

the limitations period is two years; 2 DW Aina Le‘a Development,

1 In general, there are two types of takings claims: physical
takings and regulatory takings. The first arises “when an actual physical
invasion of the landowner’s property has occurred.” 31 Am. Jur. Proof of
Facts 3d 563 § 2 (2020). Conversely, “[a] regulatory taking results when a
governmental regulation places such a burdensome restriction on a landowner’s
use of his property that the government has for all intents and purposes
‘taken’ the landowner’s property.” Id. Because DW’s state constitutional
claim is for a regulatory — rather than a physical — taking, we answer the
certified question only as to the statute of limitations for a regulatory
taking. Allstate Ins. Co. v. Alamo Rent-A-Car, Inc., 137 F.3d 634, 637 (9th
Cir. 1998) (“The court may reformulate the relevant state law questions as it
perceives them to be, in light of the contentions of the parties.” (quotation
marks omitted)).

2 HRS § 661-5 (2016) states, “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[.]”

(continued . . .)

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LLC (DW) six years; 3 and amicus curiae Owners’ Counsel of America

(OCA) twenty years. 4

HRS § 661-1 (2016) provides:

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
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.

Alternatively, the statute of limitations could also be two years
if a takings claim were held to be a personal injury action. HRS § 657-7
(2016) states, “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[.]”

3 HRS § 657-1 (2016) states in relevant part:

The following actions shall be commenced within six
years next after the cause of action accrued, and not
after:

. . .

(4) Personal actions of any nature whatsoever
not specifically covered by the laws of the
State.

4 HRS § 657-31 (2016) states, “No person shall commence an action
to recover possession of any lands, or make any entry thereon, unless within
twenty years after the right to bring the action first accrued.”

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The following facts are taken from the Ninth Circuit’s

Order Certifying Question. The underlying dispute arises from

the LUC’s reclassification of 1,060 acres of land in South

Kohala on Hawai‘i Island. The LUC classified this land as

“agricultural” until 1989, when it reclassified the land as

“urban.” In exchange for reclassification to allow for

development, the LUC required that a percentage of the

residential units constructed be “affordable,” along with other

conditions. In 2008, believing that the then-landowner, Bridge

Aina Le‘a LLC (Bridge), had failed “to perform according to the

conditions imposed and to the representations and commitments

made to the [LUC] in obtaining reclassification,” the LUC issued

an order requiring Bridge to show cause why the land should not

be reclassified back to agricultural use. In February 2009,

Bridge told the LUC that DW had agreed to purchase the property

along with the right to develop it for residential use.

Notwithstanding DW’s purchase and its representation

that it had invested more than $28 million into the development,

the LUC voted to reclassify the land as agricultural in April

2009 — finalized in a written order on April 25, 2011. This

court eventually vacated that order because the LUC had not

complied with HRS § 205-4 (2007) when it reclassified the land.

DW Aina Le‘a Dev., LLC v. Bridge Aina Le‘a, LLC, 134 Hawai‘i 187,

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213, 339 P.3d 685, 711 (2014). On February 23, 2017, DW filed

the complaint currently at issue in the Circuit Court of the

First Circuit. DW alleged that the 2011 reclassification was an

unconstitutional taking under the federal and state

constitutions because the LUC failed to compensate DW for

damages resulting from the land’s reclassification.

Specifically, DW alleged that the LUC’s reclassification caused

substantial delay in finalizing the purchase, resulting in an

increased purchase price of a portion of the land compared to

the original contract price. In addition, DW alleged that the

reclassification resulted in “interest costs, loss of business

opportunities, substantial increases in land acquisition costs,

inability to obtain financing as well as damages to its general

business name and reputation.” The takings claim is styled as

an “inverse condemnation” action - an action that allows a

landowner to enforce the Takings Clause against the government

where a regulatory action eliminates or severely diminishes the

land’s economic value. Leone v. Cty. of Maui, 141 Hawai‘i 68,

81, 404 P.3d 1257, 1270 (2017) (citing Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1015 (1992); Palazzolo v. Rhode Island,

533 U.S. 606, 617 (2001)).

A. Federal Court Proceedings

The LUC removed the case to the United States District

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Court for the District of Hawai‘i (district court) 5 and then

filed a motion to dismiss, arguing that the statute of

limitations on DW’s takings claim had expired. The district

court agreed, applying the two-year statute of limitations found

in HRS § 657-7 (1972).

The district court determined the statute of

limitations for the state constitutional claim by reference to

the statute of limitations for the federal constitutional claim.

First, with respect to DW’s federal takings claim, the district

court found that although DW did not bring its claim via 42

U.S.C. § 1983 (1996), the two-year statute of limitations for

such a claim should apply. 6 The court reasoned that “there is no

substantive distinction between a federal regulatory takings

claim brought . . . under § 1983 and a federal regulatory

takings claim that might be brought . . . directly under the

federal Constitution.” DW Aina Le‘a Dev., LLC v. State of

Hawai‘i Land Use Comm’n, No. 17-00113 SOM-RLP, 2017 WL 2563226,

at *7 (D. Haw. Jun. 13, 2017). The district court further held

that because HRS § 657-7 and the Takings Clause of the Hawai‘i

Constitution both use the term “compensation,” HRS § 657-7 ought

5 The Honorable Susan Oki Mollway presided.

6 Federal courts use state personal injury statutes of limitations
for claims brought under § 1983. Wilson v. Garcia, 471 U.S. 261, 275-76
(1985). Hawai‘i’s statute of limitations for “the recovery of compensation
for damage or injury to persons or property” is found in HRS § 657-7.

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to apply to the state constitutional claims. Id. at *11.

Second, the district court found that even if the

limitation in HRS § 657-7 did not apply, the two-year limitation

in HRS § 661-5 barred both state and federal takings claims.

Id. at *9. HRS § 661-5 covers “[e]very claim against the State,

cognizable under this part[.]” “[T]his part” gives state courts

jurisdiction over “[a]ll claims against the State founded upon

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

department; or upon any contract, express or implied, with the

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

the legislature[.]” HRS § 661-1(1). Although the text of the

statute does not extend its application to cases arising under

the Hawai‘i Constitution, the district court relied on the

Intermediate Court of Appeals’ (ICA) decision in Maunalua Bay

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

2009), to conclude that the limitations period applies

nonetheless to disputes arising under the state constitution.

2017 WL 2563226, at *9. The Ninth Circuit Court of Appeals

indicated, however, that this court’s decision in Kaho‘ohanohano

v. State, 114 Hawai‘i 302, 162 P.3d 696 (2007), appeared to

contradict the district court’s conclusion. In Kaho‘ohanohano,

this court found that the limitations period in HRS § 661-5 did

not apply to the plaintiffs’ constitutional claims because those

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claims were not “cognizable under HRS chapter 661.” 114 Hawai‘i

at 338, 162 P.3d at 732 (alterations omitted).

DW unsuccessfully urged the district court to rule

that the “catch-all” six-year statute of limitations applied to

the action. It now raises the same argument on appeal to the

Ninth Circuit. Faced with this dispute on appeal, the Ninth

Circuit Court of Appeals seeks this court’s determination of the

statute of limitations for a takings claim under the Hawai‘i

Constitution. 7

B. Supreme Court Proceedings

1. DW’s Opening Brief

DW first argues that HRS § 661-5 only applies to

claims brought pursuant to Chapter 661. It continues to argue

that HRS § 657-1(4) is the appropriate statute of limitations,

“since there are no other specific limitations periods that

would be applicable.”

In accordance with Kaho‘ohanohano, DW argues that no

claim can fall under the two-year statute of limitations in HRS

7 In Bridge Aina Le‘a, LLC v. State of Hawai‘i Land Use Commission,
950 F.3d 610 (9th Cir. 2020), the Ninth Circuit determined that Bridge’s
takings claim under the Hawai‘i Constitution - based on the same set of facts
that underlie DW’s claim here, but brought by a separate plaintiff - was not
viable because Bridge did not show that it had suffered damages. Id. at 632.
We do not address whether Bridge has preclusive effect on the merits of DW’s
claim because it is beyond the scope of the certified question presented to
us, which asks only what the statute of limitations is for such a claim.

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§ 661-5 unless it is a type of claim cognizable under that

chapter. 8 In DW’s view, its claims are not founded upon a

statute because “claims based on the constitution are not

founded upon any statute of the State[.]” It also contends the

claims are also not based upon an implied contract between the

State and DW because “the right to be compensated for a taking

of property does not arise upon a contract, but rests primarily

upon a vested constitutional right.” (Citing Hiji v. City of

Garnett, 804 P.2d 950 (Kan. 1991).)

Further, DW argues that its claims are not based on an

executive department regulation, but instead, on an “improper

reversion of land classifications, from urban to

agricultural[.]” Thus, according to DW, because “DW’s claims

are not founded upon a statute, upon any regulation of an

executive department or upon any contract and the claims were

not referred to the court by the legislature, but brought

pursuant to the [Hawai‘i] Constitution itself,” the Chapter 661

two-year statute of limitations does not apply.

DW recognizes that the ICA applied the two-year

statute of limitations in HRS § 661-5 to a takings claim under

8 As stated supra, note 2, HRS § 661-1(1) governs “[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[.]”

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the Hawai‘i Constitution in Maunalua Bay, but argues that

Kaho‘ohanohano overruled Maunalua Bay by implication.

DW further asserts that takings claims are not

properly treated as personal injury actions, which would subject

the claims to the two-year statute of limitations in HRS § 657-

7, because a takings cause of action arises from the text of the

Hawai‘i Constitution. Citing Au v. Au, 63 Haw. 210, 626 P.2d 173

(1981), DW argues that this court “prioritizes the type of wrong

over the end result” when determining which statute of

limitations applies. Thus, it maintains that because “the true

nature of DW’s takings claims is not the damages incurred to its

property interests, but rather the unconstitutional takings of

its property interests without just compensation,” the personal

injury statute of limitations does not apply. DW argues that

the federal district court was incorrect to apply the personal

injury statute of limitations because the personal injury

limitations period does not apply to all constitutional claims,

only those federal constitutional claims brought pursuant to 41

U.S.C. § 1983. It asserts state takings claims are distinct

from § 1983 claims in that the state has “the power and the

right to revert the land from urban to agricultural” zoning, so

long as just compensation is provided. Additionally, DW cites

First English Evangelical Lutheran Church of Glendale v. County

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of Los Angeles, 482 U.S. 304 (1987), to support the proposition

that a claim based on the constitution itself is fundamentally

different from a claim based on a statute; thus, the § 1983

statute of limitations should not apply to a takings claim.

2. Defendants’ Answering Brief

The LUC asserts that, “[a]s a general principle, all

cognizable claims for money damages against the State are

subject to a statutory limitations period,” and that the period

is two years.

The LUC first argues that inverse condemnation claims

should be characterized as claims arising under an implied

contract. According to the LUC, Meyer v. Territory of Hawai‘i,

36 Haw. 75 (Haw. Terr. 1942), supports its interpretation. In

Meyer, the plaintiff brought suit for a taking pursuant to a

statute that permitted suits based on implied contracts with the

Territory of Hawai‘i. Id. at 76. The LUC pointed out that North

Dakota, Virginia, Ohio, Maryland, Kansas, and Alabama have also

treated takings claims as arising from implied contracts, though

it recognizes that Kansas has also applied the statute of

limitations for adverse possession to such claims. The LUC also

contends that the United States Supreme Court decided similarly

in Phelps v. United States, 274 U.S. 341, 343 (1927), with

respect to takings claims brought under the U.S. Constitution.

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According to the LUC, if DW’s claim is construed as a claim

against the State arising out of an implied contract, the claim

would be subject to HRS § 661-5. The LUC argues that this court

should look to the “underlying realities” of the claim to

determine which statute of limitations should apply.

The LUC distinguishes Kaho‘ohanohano on the ground that

the constitutional provision sought to be enforced in this case

does not prohibit the government from taking private property;

it merely requires that the government compensate the owner.

According to the LUC, Kaho‘ohanohano and related cases 9 do not

prohibit the application of HRS § 661-5 to all constitutional

claims, only to the claim at issue in that case – which was a

claim under article XVI, section 2 (regarding membership in an

employees’ retirement system) – not a takings claim.

The LUC argues that the catch-all statute of

limitations in HRS § 657-1 does not apply because it is a

statute of general application. Quoting Big Island Small

Ranchers Ass’n v. State, 60 Haw. 228, 236, 588 P.2d 430, 436

(1978), the LUC asserts that “statutory laws of general

application are not applicable to the State unless the

9 The LUC also distinguishes Kaleikini v. Yoshioka, 129 Hawai‘i 454,
304 P.3d 252 (2013), and Nelson v. Hawaiian Homes Commission, 130 Hawai‘i 162,
307 P.3d 142 (2013), on the grounds that the plaintiffs in those cases sought
declaratory and injunctive relief and the issue was whether the State had
waived sovereign immunity for an award of attorneys’ fees.

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legislature in the enactment of such laws made them explicitly

applicable to the State.” In Big Island, this court held that

HRS Chapter 480, which regulates intrastate commerce, did not

apply to the State. Similarly, the LUC cites Chun v. Board of

Trustees of Employees’ Retirement System, 106 Hawai‘i 416, 433,

106 P.3d 339, 356 (2005), for the same principle; this court

held in Chun that HRS § 478-3 (1986), which permits post-

judgment interest, did not apply to judgments against the State.

Finally, the LUC contends that even if we conclude

that HRS § 661-5 does not apply to DW’s claim, we should

conclude that HRS § 657-7 does. HRS § 657-7 provides a two-year

statute of limitations for “[a]ctions for the recovery of

compensation for damage or injury to persons or property[.]”

The LUC argues that the use of the terms “compensation” and

“damage” in both the Takings Clause of the Constitution and the

statute of limitations shows that the statute applies to takings

claims. The LUC disagrees with the proposition stated in Au

that HRS § 657-7 only applies to physical injury to persons or

tangible interests in property. The LUC asserts that Higa v.

Mirikitani, 55 Haw. 167, 169-70 n.5, 517 P.2d 1, 3 n.5 (1973),

upon which the Au court relied, did not limit the applicability

of HRS § 657-7 to physical injuries, but merely noted that

physical injury was the context in which the statute had

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previously been applied. 10

3. DW’s Reply Brief

DW points out that, of the states applying the

limitations period for implied contracts to takings claims, all

but Virginia have a limitations period of six years.

With respect to the argument that a takings claim is

based upon an implied contract, DW continues to argue that the

language of Kaho‘ohanohano is dispositive, stating that

“constitutional claims” are “plainly not ‘founded upon any

statute of the State; or upon any regulation of an executive

department; or upon any contract,’” and therefore are not

subject to HRS § 661-5. (Quoting Kaho‘ohanohano, 114 Hawai‘i at

338, 162 P.3d at 732.) Similarly, DW argues that the Court’s

holding in United States v. Dickinson, 331 U.S. 745, 748 (1947),

that federal takings claims are “founded upon the Constitution

of the United States” supports its position. DW further argues

that the Kansas Supreme Court has expressly rejected the

contention that a takings claim arises out of an implied

contract, citing Hiji. Along with Kansas, DW argues that

Nevada, Texas, Washington, and Michigan courts have taken the

view that the statute of limitations for breach of an implied

10 The LUC notes that DW’s claim alleges a regulatory taking rather
than a physical taking but argues that the same statute of limitations should
apply to both.

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contract does not apply to takings claims.

DW also contends that takings claims under the Hawai‘i

Constitution should be “subject to stricter protections,

including a lengthier statute of limitations,” than personal

injury actions. Finally, DW responds that the State waived

sovereign immunity when it removed this matter to federal court,

so its arguments about generally-applicable statutes should be

ignored.

4. OCA’s Amicus Curiae Brief

As amicus curiae, OCA argues that the statute of

limitations for inverse condemnation should be the same as the

limitations period for adverse possession. 11

OCA begins with the premise that article I, section 20

of the Hawai‘i Constitution is self-executing. Consequently, an

inverse condemnation action does not seek damages for a taking;

instead, such an action seeks to compel the government to

recognize that there has been a taking. Once the government

recognizes that there has been a taking, just compensation for

that taking is automatically warranted.

OCA then analogizes inverse condemnation to adverse

possession - an action in which “a non-owner asserts an interest

11 Although OCA does not cite to Hawai‘i’s statute of limitations for
adverse possession in its amicus brief, the relevant limitations period is
twenty years, set forth in HRS § 657-31.

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in, or ownership of, the owner’s property.” OCA argues that

property owners are in the same position in inverse condemnation

and adverse possession actions. Recognizing when inverse

condemnation has occurred and when land is being adversely

possessed both take significant time. A regulation’s impact on

land’s economic value may not appear immediately. Similarly, a

landowner may not immediately realize that another person is

adversely possessing their land.

OCA then asserts that “the majority national rule is

that when an inverse condemnation claim is not governed by a

specific statute of limitations, the adverse possession

limitation period applies, not the ‘catch all.’” OCA cites

several out-of-state cases in which state supreme courts adopted

this rule. In one of these cases, White Pine Lumber Co. v. City

of Reno, 801 P.2d 1370, 1371 (Nev. 1990), the court noted that,

“had the ‘taker’ in this case been a private party, the

applicable limitations period would have been the one for

acquiring title by adverse possession.” The Nevada court used

this comparison to conclude that the statutes of limitation

ought to be the same for the two types of actions. Id. at 1371–

72.

Finally, OCA addresses the fundamental differences

between torts and takings. While the purpose of a plaintiff who

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brings a tort claim is to establish that the defendant’s action

was wrong, a takings claim requires that the government’s action

was not wrong and instead simply warrants compensation. OCA

argues that this distinction renders tort law unsuitable for

resolving inverse condemnation actions.

5. Defendants’ Response to OCA’s Amicus Brief

The LUC first argues that this court should decline to

adopt a position not taken by any party to the litigation.

Further, it asserts “[f]undamental differences between adverse

possession claims and inverse condemnation claims make the

application of the same statute of limitations inappropriate.”

Citing Hart v. City of Detroit, 331 N.W.2d 438, 497 (Mich.

1982), the LUC argues that in most cases, actions of the

government that could constitute a regulatory taking would not

constitute adverse possession. Additionally, the LUC contends

that adverse possession does not apply against the government.

The LUC also notes that “in all the cases OCA cites in which

courts adopted the adverse possession statutory period for

inverse condemnation claims, the statutory period was shorter

than the twenty years under Hawai‘i law.”

Finally, the LUC argues that the policy considerations

underlying the twenty-year statute of limitations for adverse

possession do not apply to inverse condemnation claims.

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Specifically, the LUC contends that, unlike takings, the

doctrine of adverse possession is meant to discourage landowners

from leaving their land unused for long periods of time; a long

statute of limitations facilitates this.

III. DISCUSSION

A. The Two-Year Statute of Limitations in HRS § 661-5 for
Claims Against the State Does Not Apply

The language of Hawai‘i’s Takings Clause shows that it

is self-executing. Consequently, DW’s claim pursuant to the

clause is properly construed as a direct constitutional claim

rather than a claim based on an implied contract with the State.

The claim is therefore beyond the scope of HRS § 661-1 and the

accompanying statute of limitations for that chapter.

1. The Takings Clause of the Hawai‘i Constitution is self-
executing

Kaho‘ohanohano is clear that “constitutional claims are

plainly not ‘founded upon any statute of the State; or upon any

regulation of an executive department; or upon any contract’ and

were not ‘referred to [the] court by the legislature[.]’” 114

Hawai‘i at 338, 162 P.3d at 732. Instead, the claims in

Kaho‘ohanohano, like DW’s claim, were based on the language of

the Hawai‘i Constitution. 12 With respect to takings, the Hawai‘i

12 In Kaho‘ohanohano, the Legislature had recently amended HRS
(continued . . .)

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Constitution states, “Private property shall not be taken or

damaged for public use without just compensation.” Haw. Const.

art. 1, § 20. We conclude that the Takings Clause of the Hawai‘i

Constitution contains self-executing language, enabling suits

based on the provision itself without implementing legislation.

This court has stated:

A constitutional provision may be said to be self-executing
if it supplies a sufficient rule by means of which the
right given may be enjoyed and protected, or the duty
imposed may be enforced; and it is not self-executing when
it merely indicates principles, without laying down rules
by means of which those principles may be given the force
of law.

State v. Rodrigues, 63 Haw. 412, 414, 629 P.2d 1111, 1113 (1981)

(quoting Davis v. Burke, 179 U.S. 399, 403 (1900)).

Article 16, section 16 of the Hawai‘i Constitution

states, “The provisions of this constitution shall be self-

executing to the fullest extent that their respective natures

permit.” In general, with respect to provisions where the

constitution uses the phrase “as provided by law,” this court

has held that the provision is not self-executing; rather, this

phrase denotes that some additional legislation is necessary to

implement it. Rodrigues, 63 Haw. at 415, 629 P.2d at 1114. The

§ 88-107 (Supp. 2006) in a way that allegedly retroactively divested the
state Employees’ Retirement System of $346.9 million. 114 Hawai‘i at 342, 162
P.3d at 736. State and county employees brought suit claiming, among other
things, that the amendment violated article XVI, section 2 of the Hawai‘i
Constitution, which states: “Membership in any employees’ retirement system
of the State or any political subdivision thereof shall be a contractual
relationship, the accrued benefits of which shall not be diminished or
impaired.” Id. at 310 n.3, 315, 162 P.3d at 705 n.3, 709.

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absence of the phrase “as provided by law” in the constitutional

provision means that no further legislation is necessary to

effectuate the right.

The Takings Clause thus satisfies the test set forth

in Rodrigues. The rule that the State may not take or damage

private property without just compensation provides a triggering

event (taking or damage to private property), a remedy

(compensation), and a metric for the remedy. “As provided by

law” does not appear in article I, section 20. The Takings

Clause thus contains language that is self-executing and needs

no further legislation to facilitate a private right of action.

See Cty. of Hawai‘i v. Ala Loop Homeowners, 123 Hawai‘i 391, 413,

235 P.3d 1103, 1125 (2010) (holding that the right of

enforcement in article XI, section 9 of the Hawai‘i Constitution

is self-executing because the language “does not suggest that

legislative action is needed before the right can be

implemented”). Indeed, other plaintiffs have brought complaints

pursuant to the Takings Clause itself. See, e.g., Leone v. Cty.

of Maui, 141 Hawai‘i 68, 72, 404 P.3d 1257, 1261 (2017)

(landowners’ complaint raised a claim directly under the Takings

Clause of the Hawai‘i Constitution as Count 1); Carswell v. Dep’t

of Land and Nat. Res., No. 28730, at 1 (App. May 22, 2009) (SDO)

(noting that Count 3 of Plaintiffs’ complaint was a “reverse

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condemnation” claim).

2. Takings claims are not based on an implied contract
with the State

The LUC urges us to adopt the view of those states

that have found takings claims to arise out of an implied

contract. As DW’s takings claim is a direct constitutional

claim, we decline to characterize it as based on an implied

contract with the State.

Although, as the LUC asserts, some state supreme

courts have taken the implied contract route, many others have

not. We find particularly persuasive the view of the Kansas

Supreme Court, which specifically rejected the position the LUC

urges us to take:

Although inverse condemnation actions have been
described as being in the nature of implied contract
actions, the right to just compensation for property taken
is also a firmly grounded constitutional right. While our
earlier cases primarily discuss the implied contract theory
of recovery, both the Fifth Amendment to the United States
Constitution and [the Takings Clause] of the Kansas
Constitution guarantee payment for private property
appropriated to public use. Thus, the right to recover
damages for property taken does not rest solely upon a
contract “expressed or implied but not in writing” under
K.S.A. 60-512(1), but rests primarily upon a vested
constitutional right. Regardless of how the cause of
action is described or what theory of recovery is applied,
the basic right to recover compensation for property taken
for public purposes is a constitutional one.

Hiji, 804 P.2d at 957-58.

The validity of the LUC’s assertion that the federal

courts have held takings claims to arise out of an implied

contract is also suspect. Notably, the United States Supreme

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Court recently observed that “[a]lthough there is no express

cause of action under the Takings Clause, aggrieved owners can

sue through the Tucker Act under our case law.” Me. Comm.

Health Options v. United States, -- U.S. ---, 140 S. Ct. 1308,

1328 n.12 (2020). The Tucker Act authorizes “claim[s] against

the United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States.”

Id. at 1327 (alterations in original) (quoting 28 U.S.C.

§ 1491(a)(1)). The Tucker Act’s language is nearly identical to

the language in HRS § 661-1, except for the addition of “the

Constitution” to the list of bases for suit. This indicates

that claims pursuant to the federal Takings Clause are founded

upon the U.S. Constitution, rather than on the breach of an

implied contract. 13 In short, the federal case law on this topic

does not appear to provide an endorsement of the State’s

conclusion in the case before us.

B. The Two-Year Statute of Limitations in HRS § 657-7 for
Injuries to Person or Property Does Not Apply

HRS § 657-7 states, “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

13 It appears that the statute of limitations under the Tucker Act
for a takings claim is six years. See 28 U.S.C. § 2501 (2004).

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accrued, and not after[.]” The LUC’s arguments that HRS § 657-7

applies are unpersuasive. Black’s Law Dictionary defines

“injury” as “[t]he violation of another’s legal right, for which

the law provides a remedy[.]” Injury, Black’s Law Dictionary

(11th ed. 2019). A takings claim seeks compensation for

something the government is entitled to do; a taking is not a

legal injury, but rather an entitlement to just compensation.

See 26 Am. Jur. 2d Eminent Domain § 21 (2020) (“Within its own

jurisdiction, each state possesses the sovereign power of

eminent domain.”); 29A C.J.S. Eminent Domain § 2 (2020) (“Unless

restricted by the constitution, a sovereign’s eminent domain

powers are absolute and total. Such powers can be denied or

restricted only by fundamental law. It cannot be delegated or

restricted by contract. It is superior to all property rights,

and every owner of property holds it subject to the right or

power of eminent domain.” (footnotes omitted)).

In Au, Plaintiff/Appellant claimed that she had bought

a house based on Defendants’ alleged fraudulent representations

that the house had not been subject to leakage. The house was

subsequently damaged by water leaks, and Plaintiff/Appellant

sued for fraud and other claims. In determining the appropriate

statute of limitations for the fraud claim, we noted:

Although the end result of the fraudulent representation
was physical injury to appellant’s tangible interest in
property, wherein HRS § 657-7 would seemingly apply, we

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believe that the instant case falls within the purview of
HRS § 657-1(4). The nature of this claim is not the
physical injury to property, rather it is the making of the
fraudulent representations concerning the condition of the
home which induced appellant to purchase it. Since
fraudulent representations are not governed by a specific
limitations period, the general limitations period set
forth in HRS § 657-1(4) applies.

Au, 63 Haw. at 216–17, 626 P.2d at 179; see also Higa, 55 Haw. at

170-73, 517 P.2d at 4-6 (applying a six-year statute of

limitations under HRS § 675-1 to a legal malpractice claim

involving “a non-physical injury to an intangible interest.”).

Here, too, although DW’s claims allege diminution in

the value of their property, the true nature of the claim is not

that the LUC physically injured property, but that the property

was taken without just compensation.

Moreover, “[v]irtually all cases having occasion to

construe [HRS § 657-7] have done so in the context of claims for

damages resulting from physical injury to persons or physical

injury to tangible interests in property.” Higa, 55 Haw. at 170

n.5, 517 P.2d at 3 n.5 (collecting cases). Because no “physical

injury to tangible interests in property” is involved in DW’s

claim, HRS § 657-7 does not apply. Au, 63 Haw. at 216, 626 P.2d

at 178–79 (citing Higa, 55 Haw. at 170 n.5, 517 P.2d at 3 n.5).

C. The Twenty-Year Statute of Limitations for Adverse
Possession Claims Does Not Apply

Although OCA appears to be correct that states often

use the adverse possession statute of limitations for inverse

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condemnation claims, upon closer inspection of the sources

cited, that rule is limited to claims arising from a physical

invasion of land. For example, OCA cites White Pine for the

proposition that “the majority national rule is that when an

inverse condemnation claim is not governed by a specific statute

of limitations, the adverse possession limitation period

applies, not the ‘catch all.’” Indeed, White Pine cited

Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 374 (Cal.

Dist. App. 1963); Difronzo v. Village of Port Sanilac, 419

N.W.2d 756, 759 (Mich. Ct. App. 1988); 14 Krambeck v. City of

Gretna, 254 N.W.2d 691, 695 (Neb. 1977); Brazos River Authority

v. City of Graham, 354 S.W.2d 99, 109-110 (Tex. 1961); and

Ackerman v. Port of Seattle, 348 P.2d 664, 667 (Wash. 1960), in

which courts applied the adverse possession statute of

limitations rather than the catch-all. White Pine, 801 P.2d at

1371. But the White Pine opinion further cited an A.L.R.

article, which also stated:

Although quite possibly the term “inverse condemnation” is
applied even more frequently to actions for the recovery of
consequential damages to land resulting from the action of
a governmental unit or public utility not taking actual,
direct, permanent possession of the land affected than it
is to cases of recovery of compensation for a direct
appropriation, the scope of the annotation is confined to
the latter type of action.

14 It appears that Michigan now applies the catch-all statute of
limitations to takings claims. Hart, 331 N.W.2d at 444-45 (applying six-year
catch-all statute of limitations to takings claim).

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Charles C. Marvel, Annotation, State Statute of Limitations

Applicable to Inverse Condemnation or Similar Proceedings by

Landowner to Obtain Compensation for Direct Appropriation of

Land Without the Institution or Conclusion of Formal Proceedings

Against Specific Owner, 26 A.L.R.4th 68 n.3 (1983) (emphasis

added).

Thus, White Pine and the accompanying authority

stating that the majority rule applies the adverse possession

limitation period refers only to physical takings, not to

regulatory takings. 15 Indeed, “[w]hile a statute of limitations

for an action arising out of title to real property applies to

inverse condemnation actions based on a physical taking, it does

not apply to a regulatory takings claim based on enactment of a

zoning ordinance[.]” 27 Am. Jur. 2d Eminent Domain § 733 (2020)

(emphasis added); see also Reitsma v. Pascoag Reservoir & Dam,

LLC, 774 A.2d 826, 838 (R.I. 2001) (noting that adverse

possession statutes of limitation have been applied to physical

takings claims). We agree with the United States Supreme

Court’s observation that the “longstanding distinction between

acquisitions of property for public use, on the one hand, and

regulations prohibiting private uses, on the other, makes it

15 The cases cited to support the court’s conclusion in White Pine
similarly deal with physical, rather than regulatory, takings. The exception
is Ackerman, in which plaintiffs challenged the diminution in value of their
property due to airplane noise. Ackerman, 348 P.2d at 665-66.

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inappropriate to treat cases involving physical takings as

controlling precedents for the evaluation of a claim that there

has been a ‘regulatory taking[.]’” Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 323 (2002)

(footnote omitted). For this reason, we find OCA’s position

unpersuasive.

D. The Catch-All Statute of Limitations of HRS § 657-1(4)
Applies to Regulatory Takings Claims

As other statutes of limitations do not apply, the

catch-all statute of limitations in HRS § 657-1 provides the

correct limitation period to apply to DW’s regulatory takings

claim. HRS § 657-1(4) provides:

The following actions shall be commenced within six
years next after the cause of action accrued, and not
after:

. . . .

(4) Personal actions of any nature whatsoever
not specifically covered by the laws of the
State.

The statute does not define “personal actions.”

However, a “personal action,” also referred to as an “action in

personam,” is “[a]n action in which the named defendant is a

natural or legal person.” Action in personam, Black’s Law

Dictionary (11th ed. 2019). Furthermore, “[a]n action is in

personam where the judgment will impose a personal liability or

obligation and does not affect the nature of the parties’

interest in property.” 1 Am. Jur. 2d Actions § 28 (2020).

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Although a takings claim necessarily involves property, the

action is personal because the Takings Clause “is designed to

secure compensation, not to limit governmental interference with

property rights.” 26 Am. Jur. 2d Eminent Domain § 3 (2020). A

takings claim brought against the State – a legal person – in

order to impose a financial obligation is therefore a personal

action within the meaning of HRS § 657-1(4). See Hart, 331

N.W.2d at 444-45 (conceptualizing inverse condemnation claims as

personal actions). 16

In Au, we noted that a “personal action” has included:

an action brought for the recovery of personal property,
for the enforcement of a contract or to recover for its
breach, or for the recovery of damages for the commission
of an injury to the person or property; an action for the
recovery of a debt, or damages from the breach of contract,
or for a specific personal chattel, or for the satisfaction
in damages for injury to the person or property. (Footnotes
omitted.)

63 Haw. at 217, 626 P.2d at 179 (citations omitted).

Although the list of causes of action set forth in Au

does not include an action seeking compensation for a taking

under the Hawai‘i Constitution, Au’s list also does not purport

16 When faced with determining the meaning of personal action under
a similar general statute of limitations, the Supreme Court of Michigan
concluded that “personal action” included inverse condemnation claims. Hart,
331 N.W.2d at 444-45. The Hart court reasoned: “As the plaintiffs are not
seeking recovery of their lands but compensation for a [regulatory] taking by
the sovereign, this cause of action may be logically conceptualized as a
personal action which arises in relation to a former interest in real
property.” Id. The court therefore concluded that Michigan’s general six-
year statute of limitations statute applies to inverse condemnation claims.
Id. at 445.

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to be exhaustive. Indeed, the claim at issue in Au was

fraudulent representation; notwithstanding that the words

“fraudulent representation” are absent from the definition of

personal action, the Au court held that HRS § 657-1(4) applied. 17

Id.

The LUC’s argument that claims against it are exempt

from HRS § 657-1 because it is a statute of general

applicability is unavailing. First, where a statute “does not

create a novel claim for relief, but merely establishes the

circumstances under which” a party can recover damages, the

State is subject to the statute even absent an express waiver of

sovereign immunity. Fought & Co., Inc. v. Steel Eng’g &

Erection, Inc., 87 Hawai‘i 37, 56, 951 P.2d 487, 506 (1998)

(holding that the State was subject to a statute allowing

prevailing parties to recover costs of suit). The principle

that individuals generally cannot sue the sovereign for

substantive legal violations does not mean that a statute of

limitations – part of the process of litigation – does not apply

when the State is subject to suit pursuant to some other

statute. To conclude that statutes of limitation that do not

17 The plain text of HRS § 657-1(4), by extending to “[p]ersonal
actions of any nature whatsoever,” evinces the legislature’s intent that the
statute apply broadly. (Emphasis added.) Thus, we think reading Au as
inclusive, rather than exclusive, is also consistent with the purpose and
spirit of the statute.

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explicitly apply to the State can never be invoked to govern a

suit against the State could just as easily lead to the rule

that there is no statute of limitations upon a regulatory

takings claim at all. HRS § 661-5 does not apply to

constitutional claims, as set forth above, and there is no other

statute of limitations that mentions the State.

Second, HRS § 657-1.5 (1991) exempts claims brought by

the State from the statutes of limitation set forth in the

chapter. 18 There is no parallel exemption for claims brought

against the State. This suggests that actions brought against

the State can fall under the limitations periods set forth in

the chapter if the action meets the relevant subject matter

requirements. We also note that Maryland, Michigan,

Mississippi, Vermont, and Wyoming have held that catch-all

statutes of limitation apply to regulatory takings claims. See

Harford Cty. v. Md. Reclamation Assocs., Inc., 213 A.3d 757, 778

(Md. Ct. Spec. App. 2019); Hart, 331 N.W.2d at 444-45; City of

Tupelo v. O’Callaghan, 208 So. 3d 556, 568 (Miss. 2017); Dep’t

of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 869

A.2d 603, 607-08 (Vt. 2004); Smith v. Bd. of Cty. Comm’rs of

18 HRS § 657-1.5 states, “No limitation of actions provided for
under this or any other chapter shall apply to bar the institution or
maintenance of any action by or on behalf of the State and its agencies[.]”
(emphasis added).

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Park Cty., 291 P.3d 947, 954 (Wyo. 2013).

IV. CONCLUSION

For the foregoing reasons, we respond to the certified

question as follows: the statute of limitations for a takings

claim under the Hawai‘i Constitution is six years pursuant to HRS

§ 657-1(4).

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Paul B.K. Wong

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