Maunalua Bay Beach Ohana 28 v. State.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAR-2024
07:56 AM
Dkt. 156 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

MAUNALUA BAY BEACH OHANA 28, a Hawai#i Non-Profit Corporation;
MAUNALUA BAY BEACH OHANA 29, a Hawai#i Non-Profit Corporation;
and MAUNALUA BAY BEACH OHANA 38, a Hawai#i Non-Profit
Corporation, individually and on behalf of all others similarly
situated, Plaintiffs-Appellants/Cross-Appellee, v.
STATE OF HAWAI#I, Defendant-Appellee/Cross-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC051000904)

MARCH 18, 2024

HIRAOKA, PRESIDING JUDGE, NAKASONE AND McCULLEN, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Maunalua Bay Beach Ohana 28, Maunalua Bay Beach

Ohana 29, and Maunalua Bay Beach Ohana 38 (the Beach Lot Owners)

own thin strips of beach in the Portlock area of east O#ahu (the
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Beach Lots).1 They sued the State of Hawai#i. They sought a

declaration that the State, by enacting 2003 Haw. Sess. Laws Act

73, took existing and future accreted land2 without paying just

compensation. The circuit court agreed, but let the State take

an interlocutory appeal. We held that "Act 73 effectuated a

permanent taking of" ownership rights in accreted land existing

and unregistered as of Act 73's effective date. Maunalua Bay

Beach Ohana 28 v. State, 122 Hawai#i 34, 57, 222 P.3d 441, 464

(App. 2009), cert. rejected, No. 28175, 2010 WL 2329366 (Haw.

June 9, 2010), cert. denied, 562 U.S. 1005, 131 S. Ct. 529, 178

L. Ed. 2d 374 (2010). We remanded for the circuit court to

decide whether Beach Lot Owners owned land that had accreted

before Act 73's effective date and, if so, to determine just

compensation for the taking. Id.

On remand, the parties stipulated that the Beach Lots

included land that accreted before Act 73 took effect (the

Accreted Land). The circuit court held a bench trial.3 It found

that just compensation was $0. It also granted the State's

motion for costs and denied Beach Lot Owners' motion for

attorneys fees. Beach Lot Owners appeal from the resulting Final

Judgment. We hold: (1) the law of the case doctrine did not

1
According to the parties' stipulated facts, Beach Lot Owners are
Hawai#i non-profit corporations "established by homeowners in the Portlock
area for the specific and sole purpose of owning" the Beach Lots.
2
"Accreted land" is land formed by gradual accumulation on a beach
or shore along the ocean by the action of natural forces. See Hawaii Revised
Statutes (HRS) § 171-1 (Supp. 2003).
3
The Honorable Virginia Lea Crandall presided.

2
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

prevent the circuit court from considering a change in the

controlling legislation enacted after we decided Maunalua Bay;

(2) the circuit court's finding that just compensation was $0 was

not clearly erroneous; (3) Beach Lot Owners were not entitled to

nominal damages; (4) Beach Lot Owners were not entitled to

attorneys fees; (5) the circuit court did not abuse its

discretion by denying certification of a damages class; and

(6) the circuit court's determination that the State was the

prevailing party is not material to the issues presented by this
appeal, and moot. We affirm the Final Judgment.

I. BACKGROUND4

The Estate of Bernice Pauahi Bishop (Bishop Estate)

owned the land in the Portlock area of east O#ahu. In the 1930s

Bishop Estate subdivided the land into Home Lots. It kept the

fee interest and leased the Home Lots. Many of the Home Lots

were near the beach, but Bishop Estate never leased the Beach

Lots — long, narrow strips of beach between the Home Lots and the

ocean.

Bishop Estate never restricted the Beach Lots for

exclusive use by lessees of Home Lots bordering the Beach Lots.

In the 1990s Bishop Estate sold the fee interests in the Home

Lots to their lessees, but continued to own the Beach Lots.

4
Some of the background comes from the parties' stipulated facts
and from the circuit court's unchallenged findings of fact. See Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82
(2002) (noting that unchallenged factual findings are deemed to be binding on
appeal).

3
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Bishop Estate never restricted the Beach Lots for exclusive use

of owners of Home Lots bordering the Beach Lots.

Before May 20, 2003, Hawaii Revised Statutes (HRS)

§ 171-2 provided:
Definition of public lands. "Public lands" means all lands
or interest therein in the State classed as government or
crown lands previous to August 15, 1895, or acquired or
reserved by the government upon or subsequent to that date
by purchase, exchange, escheat, or the exercise of the right
of eminent domain, or in any other manner; including
submerged lands, and lands beneath tidal waters which are
suitable for reclamation, together with reclaimed lands
which have been given the status of public lands under this
chapter, [subject to exceptions not at issue in this case.]

HRS § 171-2 (Supp. 2002).

Act 73 amended HRS § 171-2 by adding "accreted lands

not otherwise awarded" to the definition of "public lands." 2003

Haw. Sess. Laws Act 73, § 2 at 128. It took effect on May 20,

2003. Id., § 8 at 130. It effectively made any land accreted to

the Beach Lots after May 20, 2003, public land not owned by

Bishop Estate.5

On May 6, 2005, Bishop Estate sold the Beach Lots to

Beach Lot Owners for $3,000. Each Beach Lot owner paid $1,000
for its lot. The deeds had a "restriction limiting the use of

the parcels for non-residential use only." They also had

restrictive covenants running with the land. The covenants

require that the Beach Lots be "used by the public for access,

customary beach activities and related recreational and community

purposes . . . in perpetuity[.]"

5
Act 73 also restricted the ability of private landowners to
register accreted land in land court, 2003 Haw. Sess. Laws Act 73, § 4 at 129,
and to quiet title to accreted land, id., § 5 at 129.

4
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Two weeks after buying the Beach Lots, Beach Lot Owners

sued the State for inverse condemnation. They sought a

declaration that Act 73 took the Accreted Land, an injunction

against enforcement of Act 73 without payment of just

compensation, and payment of just compensation. The circuit

court certified a plaintiff class "consisting of all non-

governmental owners of oceanfront real property in the State of

Hawai#i on and/or after May 19, 2003."

The circuit court granted Beach Lot Owners' motion for

partial summary judgment, declaring that Act 73 "effected an

uncompensated taking of, and injury to, [Beach Lot Owners']

accreted land[.]"6 Maunalua Bay, 122 Hawai#i at 36, 222 P.3d

at 443. The State took an interlocutory appeal. We held that

Act 73 "effectuated a permanent taking of" accretions existing

and unregistered as of Act 73's effective date. Id. at 57, 222

P.3d at 464. But we also held that Beach Lot Owners "and the

class they represented had no vested property rights to future

accretions to their oceanfront land and, therefore, Act 73 did
not effect an uncompensated taking of future accretions[.]" Id.

We remanded for the circuit court to decide whether Beach Lot

Owners owned land that had accreted before Act 73's effective

date and, if so, to determine just compensation for the taking.

Id.

On remand, Beach Lot Owners moved to certify a damages

class of "[a]ll private owners of oceanfront property in the

6
The Honorable Eden Elizabeth Hifo presided.

5
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State of Hawai#i who, as of May 19, 2003, owned accreted land[.]"

The circuit court denied class certification. The parties

stipulated that Beach Lot Owners owned land that accreted before

Act 73 took effect, and that "[j]ust compensation, if any, shall

be based on the fair rental value of the accreted land as of

[Act 73's effective date], but taking into account restrictions

on [Beach Lot Owners'] use of the property, if appropriate."

The circuit court held a bench trial to determine just

compensation. It found that just compensation was $0. It

granted the State's motion for costs, denied Beach Lot Owners'

motion for attorneys fees, and entered the Final Judgment for the

State and against Beach Lot Owners.7 Beach Lot Owners appealed.8

Beach Lot Owners contend that the circuit court erred

by: (1) concluding that no permanent taking occurred; (2) not

awarding damages; (3) not awarding nominal damages; (4) denying

their motion for attorneys fees; (5) denying their motion to

certify a damages class; and (6) determining that the State was

the prevailing party.

7
The Honorable James C. McWhinnie entered the orders on costs and
attorneys fees and the Final Judgment.
8
The State cross-appealed but the cross-appeal is moot because we
affirm the Final Judgment. See Leone v. County of Maui, 141 Hawai#i 68, 89,
404 P.3d 1257, 1278 (2017) (concluding that cross-appeal was moot because
circuit court's judgment was affirmed).

6
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

II. STANDARDS OF REVIEW

A. Findings of Fact and Conclusions of Law

We review findings of fact under the clearly erroneous

standard. Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332,

351, 152 P.3d 504, 523 (2007). A finding of fact is clearly

erroneous when the record lacks substantial evidence to support

the finding or when, despite substantial evidence to support the

finding, we are left with a definite and firm conviction that a

mistake has been made. Id. "Substantial evidence" is "credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion."

Id. (citations omitted).
We review conclusions of law de novo under the

right/wrong standard. Klink, 113 Hawai#i at 351, 152 P.3d at

523. But a conclusion of law presenting mixed questions of fact

and law is reviewed under the clearly erroneous standard because

the court's conclusion depends on the facts and circumstances of

the individual case. Id. A conclusion of law supported by the
trial court's findings of fact and applying the correct rule of

law will not be overturned. Id.

B. Attorneys Fees Under the Private Attorney
General Doctrine

We review a denial of attorneys fees under the private

attorney general doctrine de novo under the right/wrong standard.

Pub. Access Trails Haw. v. Haleakala Ranch Co., 153 Hawai#i 1,

21, 526 P.3d 526, 546 (2023).

7
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

C. Class Certification

We review the denial of class certification for abuse

of discretion. Gurrobat v. HTH Corp., 133 Hawai#i 1, 14, 323

P.3d 792, 805 (2014).

D. Prevailing Party Determination

We review a trial court's determination of who is the

prevailing party de novo under the right/wrong standard. Molinar

v. Schweizer, 95 Hawai#i 331, 334–35, 22 P.3d 978, 981–82 (2001).

III. DISCUSSION

A. The circuit court did not err by concluding,
given Act 56 (2012), that Act 73 effected a
temporary taking.

Beach Lot Owners argue that the circuit court "erred in

disregarding the law of the case . . . and concluding that there

was no taking" of the Accreted Land. The argument fails for two

reasons.

First, the circuit court did not conclude there was no

taking; had it done so, it would not have had to try the claim

for just compensation. Beach Lot Owners cite to the circuit

court's conclusions that Act 73 did not effect a regulatory

taking under various tests commonly called Loretto, Lucas, and
Penn Central. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,

538–39, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005); see also Leone

v. County of Maui, 141 Hawai#i 68, 81, 404 P.3d 1257, 1270 (2017)

(summarizing law on regulatory takings). But the circuit court

also concluded:

8
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

11. In addition to reaffirming its conclusion that
Act 73 effected a temporary taking of [Beach Lot Owners']
accreted lands, this Court further concludes that, by
repealing portions of Act 73, Act 56 ended the taking of
accreted lands, effective April 23, 2012. In other words,
the State effected a temporary taking of [Beach Lot Owners']
accreted lands from May 20, 2003 to April 23, 2012.

(Emphasis added.) The conclusion was not wrong. And it follows

Beach Lot Owners' argument (in its opening brief) that Act 56

"merely limited the taking to a period of nine years."

Second, the circuit court did not violate the law of

the case. Under the law of the case doctrine, "a determination

of a question of law made by an appellate court in the course of

an action becomes the law of the case and may not be disputed by

a reopening of the question at a later stage of the litigation."

Hussey v. Say, 139 Hawai#i 181, 185, 384 P.3d 1282, 1286 (2016)
(citation omitted). On December 30, 2009, we held that Act 73

"effectuated a permanent taking of" accretions existing and

unregistered as of Act 73's effective date. Maunalua Bay, 122

Hawai#i at 57, 222 P.3d at 464 (emphasis added). Three years

later, Act 56 of the 2012 legislature changed the law by

terminating the taking effectuated by Act 73. Act 56 further
amended the definition of "public lands" in HRS § 171-2. 2012

Haw. Sess. Laws Act 56, § 1 at 122. Under Act 56, only land that

accreted after the effective date of Act 76 were public lands.

Id. Act 56 took effect on April 23, 2012. Id. § 5 at 123.

Act 56 thus limited the effect Act 73 had on Beach Lot Owners to

the period from May 20, 2003 (the effective date of Act 73) to

April 23, 2012.

9
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[A] governmental body may acquiesce in a judicial
declaration that one of its ordinances has effected an
unconstitutional taking of property; the landowner has no
right under the Just Compensation Clause [of the Fifth
Amendment to the United States Constitution] to insist that
a "temporary" taking be deemed a permanent taking.

First Eng. Evangelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304, 317, 107 S. Ct. 2378, 96 L. Ed. 2d 250

(1987). Under some circumstances, a change in controlling law

could support relief under Hawai#i Rules of Civil Procedure

(HRCP) Rule 60(b)(6). See Gonzalez v. Crosby, 545 U.S. 524, 531,

125 S. Ct. 2641, 162 L. Ed 2d 480 (2005) (citing Fed. R. Civ. P.

60(b)(6)). Instead, Beach Lot Owners stipulated that the circuit

court would decide "whether Act 73 effected and Act 56 ended a

temporary taking of any accreted lands from May 19, 2003, to

April 23, 2012 (or any part of that time) and if so the amount of

just compensation, if any, that is due to [Beach Lot Owners] for

the taking." (Emphasis added.) The law of the case doctrine did

not prevent the circuit court from considering the change in the

controlling law, particularly given Beach Lot Owners'

stipulation.

B. The circuit court's finding that just
compensation to Beach Lot Owners was $0 was
not clearly erroneous.

Beach Lot Owners argue that "depriving [them] of ocean-

front property in Maunalua Bay for 9 years cannot possibly be

valued at $0." The parties stipulated that "[j]ust compensation,

if any, shall be based on the fair rental value of the accreted

land as of May 19, 2003, but taking into account restrictions on

10
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

plaintiffs' use of the property, if appropriate." The

restrictions included limiting the Beach Lots to non-residential

use and requiring that they be open to the public for access,

customary beach activities, and related recreational and

community purposes, in perpetuity.

Beach Lot Owners argue that their "[o]wnership of the

[Beach Lots] was expected to enhance the value of the adjoining

[Home Lots] and protect the solitude, peace, and quiet the owners

enjoyed. The purchase was made to protect the investments made

in their existing lots." (Citations to the record omitted.)

Beach Lot Owners do not own any Home Lots. Beach Lot Owners

conflate their entitlement to just compensation with the

interests of owners of the Home Lots, who are not parties to this

case.

Beach Lot Owners' evidence of fair rental value was

based on the testimony of Stephany Sofos. The circuit court "did

not find Ms. Sofos to be a credible witness" and gave "no weight

to her testimony." "It is well-settled that an appellate court

will not pass upon issues dependent upon the credibility of

witnesses and the weight of evidence; this is the province of the

trier of fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006) (citation omitted).

11
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The circuit court instead credited the testimony of

Craig Leong, a licensed real estate appraiser who holds the MAI

designation.9 The circuit court found:

108. Mr. Leong based his conclusion on highest-and-
best use on, among other things, the irregular shapes and
narrow widths of the parcels; limited access; conservation-
district regulations; the restrictive covenants in the KS
deeds to plaintiffs; the State's non-interference with
plaintiffs use; the lack of any history of financial gain
from the makai land, and the fact that [Bishop Estate] sold
the three beach reserve lots for $1,000 each. The Court
finds that Mr. Leong's analysis is credible.
109. The Court agrees with Mr. Leong's conclusion:
"Given the highly irregular, and narrow property
characteristics of the accreted land, and after
consideration of the restricted street access to the subject
property, and perhaps, more importantly, as both government
and private land use regulations and covenants restrict the
legally permissible use of the accreted land area to public
access, customary beach activities, and related recreational
and community purposes, the appraiser concludes that no
known market buyer exists for the subject accreted land."

110. Mr. Leong concludes that there was a $0 market
rent attributable to the land with a retrospective date of
2003.
111. The Court finds Mr. Leong's ultimate conclusion
of value to be credible, logical, and well founded. The
Court finds that the fair market rent as of May 2003 was $0.

(Citations to the record omitted.)

Beach Lot Owners' statement of the points of error

challenges these findings, but their opening brief presents no

argument about why they were clearly erroneous. See Hawai#i

Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued

may be deemed waived."). At any rate, the findings are supported

9
MAI means Member, Appraisal Institute. "The Appraisal Institute
is a global professional association with over 16,000 professionals in almost
50 countries throughout the world." See Appraisal Institute,
https://www.appraisalinstitute.org/about [https://perma.cc/L27X-7E3E] (last
visited Mar. 8, 2024).

12
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

by substantial evidence in the record, and were not clearly

erroneous.

The circuit court concluded:
69. For all of the reasons set forth in the findings
of fact, including the credible testimony of Mr. Leong, the
Court finds that the fair market rent for the [Accreted
Land] on May 19, 2003 was $0.

This conclusion of law was actually a finding of fact.10 It was

supported by substantial evidence in the record, and was not

clearly erroneous.

C. Beach Lot Owners were not entitled to nominal
damages.

Beach Lot Owners argue that "the lower court should

have awarded $1 nominal damages to each Appellant." "[N]ominal

damages are a small and trivial sum awarded for a technical

injury due to a violation of some legal right and as a

consequence of which some damages must be awarded to determine

the right." Kanahele v. Han, 125 Hawai#i 446, 457–58, 263 P.3d

726, 737–38 (2011) (cleaned up).

"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." DW Aina Le#a Dev.,

LLC v. State Land Use Comm'n, 148 Hawai#i 396, 404, 477 P.3d 836,

844 (2020) (citations omitted). The circuit court found that

10
The label of a finding of fact or a conclusion of law does not
determine the standard of review because the accuracy of the label affixed by
the trial court is freely reviewable by an appellate court. Cf. Kilauea
Neighborhood Ass'n v. Land Use Comm'n, 7 Haw. App. 227, 229, 751 P.2d 1031,
1034 (1988) (concerning an administrative agency's findings and conclusions).

13
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

just compensation for Act 73's temporary taking of the Accreted

Land was $0. Beach Lot Owners did not sustain a "technical

injury due to a violation of some legal right[.]" Kanahele, 125

Hawai#i at 457–58, 263 P.3d at 737–38. They were not entitled to

nominal damages.

D. Beach Lot Owners were not entitled to
attorneys fees under the private attorney
general doctrine.

Beach Lot Owners sought attorneys fees under the

equitable doctrine of private attorney general. The doctrine is

an exception to the "American Rule" that each party must pay

their own litigation expenses. Pub. Access Trails Haw., 153
Hawai#i at 22, 526 P.3d at 547.
(1) The claim is barred by sovereign immunity under

the circumstances of this case. The State argues that sovereign

immunity bars an award of attorneys fees. The only claim on

which Beach Lot Owners prevailed was for a declaration that

Act 73 was an uncompensated taking of unregistered land that had

accreted between the effective dates of Act 73 (May 20, 2003) and
Act 56 (April 23, 2012). When a party seeks declaratory relief

against the State,
the ability to sue the state does not stem from a waiver of
sovereign immunity, but from the fact that sovereign
immunity does not bar the suit in the first place.
Therefore, no clear statutory waiver that could be extended
to attorney's fees is present when the underlying claim is
for declaratory and/or injunctive relief.

Nelson v. Hawaiian Homes Comm'n, 130 Hawai#i 162, 170, 307 P.3d

142, 150 (2013) (emphasis added) (cleaned up) (quoting Sierra

14
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Club v. Haw. Dep't of Transp., 120 Hawai#i 181, 229 n.30, 202

P.3d 1226, 1274 n.30 (2009)); see also Gold Coast Neighborhood

Ass'n v. State, 140 Hawai#i 437, 466-67, 403 P.3d 214, 243-44

(2017) (denying claim for attorneys fees against State under

private attorney general doctrine where plaintiff sought

declaratory relief over State's responsibility to maintain

seawall); Kaleikini v. Yoshioka, 129 Hawai#i 454, 468, 304 P.3d

252, 266 (2013) (disallowing claim for attorneys fees against

State under private attorney general doctrine because statutory

provision allowing declaratory or injunctive relief is not a

waiver of the State's sovereign immunity, but an exception to

sovereign immunity doctrine for which no waiver is necessary).

Beach Lot Owners cite Sierra Club, but attorneys fees
were awarded in that case because Sierra Club's claim was brought

under HRS § 343-7, which waived the State's sovereign immunity

against suits over environmental assessments and environmental

impact statements. Id. at 228, 202 P.3d at 1273. Beach Lot

Owners did not seek relief under HRS § 343-7.
Beach Lot Owners also cite HRS § 661-5, the statute of

limitations for claims against the State under HRS Chapter 661.

See Maunalua Bay, 122 Hawai#i at 51 n.12, 222 P.3d at 458 n.12.

HRS § 661-1 waives sovereign immunity for claims against the

State under article I, section 20 of the Hawai#i Constitution,

which states: "Private property shall not be taken or damaged for

public use without just compensation." A claim under Haw. Const.

art. I, § 20 seeks compensation for something the government has

15
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the right to do. DW Aina Le#a Dev., LLC, 148 Hawai#i at 404, 477

P.3d at 844. The circuit court found that just compensation for

Act 73's temporary taking of the Accreted Land was $0. The only

claim on which Beach Lot Owners prevailed (partially) was one for

declaratory relief. But their claim for attorneys fees against

the State for obtaining declaratory relief is barred by sovereign

immunity. Nelson, 130 Hawai#i at 170, 307 P.3d at 150.

(2) Beach Lot Owners did not satisfy the legal test.

Even if sovereign immunity had not barred Beach Lot Owners' claim

for attorneys fees, they did not satisfy the legal test. Courts

consider three factors to determine whether the private attorney

general doctrine applies:
(1) the strength or societal importance of the public
policy vindicated by the litigation,

(2) the necessity for private enforcement and the
magnitude of the resultant burden on the plaintiff,
and
(3) the number of people standing to benefit from the
decision.

Pub. Access Trails Haw., 153 Hawai#i at 22, 526 P.3d at 547

(cleaned up) (reformatted).
(a) A case vindicates public policy of strong or

societal importance when "all of the citizens of the state,

present and future, [stand] to benefit from the decision." In re
Water Use Permit Applications, 96 Hawai#i 27, 31, 25 P.3d 802,

806 (2001). The circuit court certified a plaintiff class for

its declaratory ruling, but the record isn't clear about how many

people the plaintiff class actually encompasses. Or whether

16
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

there are actually any class members other than the Beach Lot

Owners.

Land in Portlock was awarded to Princess Victoria

Kamāmalu11 as Land Commission Award 7713, #Āpana,12 and passed from

her to Princess Bernice Pauahi Pākī Bishop (great-granddaughter

of Kamehameha I).13 Bishop's estate owned the land during the

twentieth century.14 Beach Lot Owners and the State disagreed

about the location of the shoreline boundary in the land

commission award, and whether or when any part of the Beach Lots

was awarded to Kamāmalu. The State stipulated on remand that

Beach Lot Owners owned the Beach Lots and the Accreted Land.

That stipulation binds us. But under Hawai#i common law the

boundary between private oceanfront property and public beach

property is marked by "the debris line or vegetation line,

whichever is furthest mauka [(inland).]" Diamond v. Dobbin, 132

Hawai#i 9, 31, 319 P.3d 1017, 1039 (2014) (citation omitted).

That is so "notwithstanding that the deed for the oceanfront

property describes the property by 'certain distances and

11
See Victoria Kamāmalu, Hawai#i Dept. of Acct. and Gen. Servs.,
https://ags.hawaii.gov/archives/online-exhibitions/centennial-
exhibit/victoria-kamamalu [https://perma.cc/5FAU-WZYX] (last visited Mar. 11,
2024).
12
"#Āpana" is defined as a "[p]iece, slice, portion, fragment,
section, segment, installment, part, land parcel, lot, district, sector, ward,
precinct[.]" Makila Land Co. v. Kapu, 152 Hawai#i 112, 115 n.5, 522 P.3d 259,
262 n.5 (2022).
13
See About Pauahi, Kamehameha Schools,
https://www.ksbe.edu/about-us/about-pauahi [https://perma.cc/3QMP-V8KT] (last
visited Mar. 11, 2024).
14
See First Amended and Supplemental Stipulation of Facts at ¶18,
Maunalua Bay Beach Ohana 28 v. State, Judiciary Information Management System,
(No. 185 Civ. 1CC051000904).

17
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

azimuths' that put the seaward boundary of the property below the

high-water mark[.]" Maunalua Bay, 122 Hawai#i at 46, 222 P.3d

at 453. Ordinarily, an owner of beachfront property would not

own land makai (seaward) of the debris or vegetation line

(whichever is further mauka), no matter what the deed's property

description states. If land accretes to property makai of that

line, the beachfront property owner would not own the accreted

land. Of the class certification, we noted:

While certification of a class for purposes of determining
generically whether Act 73 effectuated a taking of littoral
owners' future accretions might have been appropriate, we
have questions about whether the class certification was
proper for determining whether Act 73 effectuated a taking
of those accretions existing as of the effective date of
Act 73, since each littoral owner's factual situation
regarding existing accretions would be different and not
conducive to class adjudication.

Id. at 55-56, 222 P.3d at 462-63.

At any rate, Beach Lot Owners vindicated private, not

public, interests — those of people (if any) who owned property

makai of the highest reach of the highest wash of the waves, to

which unregistered land accreted between May 20, 2003 and April

23, 2012. The class comprises far less than "all of the citizens

of the state, present and future[.]" The public interest calls

for the beaches of Hawai#i to be available for use by all

citizens of the state, present and future, not just to a few

private beach owners. See Application of Ashford, 50 Haw. 314,

315, 440 P.2d 76, 77 (1968) (holding that the seaward boundary of

private property "is along the upper reaches of the wash of

waves, usually evidenced by the edge of vegetation or by the line

18
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of debris left by the wash of waves"); County of Hawaii v.

Sotomura, 55 Haw. 176, 181–82, 517 P.2d 57, 61–62 (1973) (noting

that "[t]he Ashford decision was a judicial recognition of long-

standing public use of Hawaii's beaches to an easily recognizable

boundary that has ripened into a customary right. Public policy,

as interpreted by this court, favors extending to public use and

ownership as much of Hawaii's shoreline as is reasonably

possible." (citation omitted)). The first factor for application

of the private attorney general doctrine was not satisfied.

(b) The second factor involves "the necessity for

private enforcement and the magnitude of the resultant burden on

the plaintiff[.]" Pub. Access Trails Haw., 153 Hawai#i at 22,
526 P.3d at 547. The supreme court has explained:

In the complex society in which we live it frequently occurs
that citizens in great numbers and across a broad spectrum
have interests in common. These, while of enormous
significance to the society as a whole, do not involve the
fortunes of a single individual to the extent necessary to
encourage their private vindication in the courts.

In re Water Use Permit Applications, 96 Hawai#i at 30, 25 P.3d

at 805 (citation omitted). Beach Lot Owners argue that "the

costs of litigating for more than a dozen years against the vast

resources of the State of Hawai#i dwarfs the potential recovery

of any individual non-governmental beachfront property owner."

But Beach Lot Owners sought compensation of more than $6 million

— $695,467.77 for the year beginning May 19, 2003 (based on

Sofos' opinion of fair rental value), going up two percent each

year for eight years, plus interest. This obviously is not a

19
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

case where no single person would have an incentive to sue the

State for compensation under Act 73. The second factor was not

satisfied.

(c) The third factor is "the number of people standing

to benefit from the decision." Pub. Access Trails Haw., 153

Hawai#i at 22, 526 P.3d at 547. The number of people who would

actually qualify as members of the plaintiff declaratory class is

not shown, or even approximated, in the record. We question

whether such a plaintiff class could legally exist, in light of

Ashford and Sotomura. See Maunalua Bay, 122 Hawai#i at 46, 222

P.3d at 453. Beach Lot Owners' declaratory judgment did not

benefit "all of the citizens of the state, present and future[.]"

In re Water Use Permit Applications, 96 Hawai#i at 31, 25 P.3d

at 806. The third factor was not satisfied.

E. The circuit court did not abuse its
discretion by denying certification of a
damages class.

Beach Lot Owners sought certification of a damages

class under HRCP Rule 23(b)(2), (3). The rule provides:

(b) Class actions maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:

. . . .
(2) the party opposing the class has acted or
refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class
as a whole; or

(3) the court finds that the questions of law or
fact common to the members of the class predominate over any
questions affecting only individual members, and that a
class action is superior to other available methods for the
fair and efficient adjudication of the controversy. The

20
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

matters pertinent to the findings include: (A) the interest
of members of the class in individually controlling the
prosecution or defense of separate actions; (B) the extent
and nature of any litigation concerning the controversy
already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.

(Emphasis added.)

Beach Lot Owners sought to certify a damages class

consisting of:
All private owners of oceanfront property in the State of
Hawai#i who, as of May 19, 2003, owned accreted land that
had not previously been recorded or registered and that was
not, on that date, the subject of a then-pending
registration or quiet title proceeding.

(Emphasis added.) Beach Lot Owners acquired the Beach Lots on

May 6, 2005. They were not members of the class they sought to

certify. For this reason alone, the circuit court did not abuse

its discretion in denying class certification.

A prerequisite under HRCP Rule 23(b)(2) "is that final

injunctive or declaratory relief must be requested against the

party opposing the class." 7AA Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1775 (3d. ed. updated
Apr. 2023). A claim for money damages does not qualify for class

certification under HRCP Rule 23(b)(2). Id. Nor does a claim

for just compensation, which is not a claim for injunctive or

declaratory relief.

Members of an HRCP Rule 23(b)(3) class must be notified

of their option to be excluded from the class. HRCP

Rule 23(c)(2). The circuit court ruled:

21
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Second, Rule 23(b)(3), unlike Rule 23(b)(2), requires
notice to the class members and an opportunity to opt out.
Thus, the members of a Rule 23(b)(3) class must be
ascertainable. The proposed class here is not readily
ascertainable. [Beach Lot Owners'] proposal to use tax map
data and recorded documents with the Land Court and Bureau
of Conveyances will be difficult to access and will not
account for resolutions of disputes in ownership. Marcus v.
BMW of North America, LLC, 687 F.3d 583, 591 (3rd Cir. 2012)
("If class members are impossible to identify without
extensive and individualized fact-finding or 'mini-trials,'
then a class action is inappropriate.").
Third, land is unique and there will be individualized
issues as to the claim for compensation and the right of the
State to raise individual challenges and defenses to the
claims. [Beach Lot Owners] proposal to determine damages
based on regional groupings does not take into consideration
variations in individual properties.
Fourth, [Beach Lot Owners] presented a method to
determine the area of accreted land on the islands of
[Kaua#i], [O#ahu] and Maui, but there is no method presented
to determine the area of accreted land on the islands of
Hawai#i, [Moloka#i], [Lāna#i], and [Ni#ihau]. The proposed
class is for all private owners of oceanfront property in
the State of Hawai#i, but the studies suggested by the
[Beach Lot Owners] to be used to determine the accreted land
do not include the entire state.
Fifth, Dr. Charles Fletcher, the lead author of the
shoreline change study that [Beach Lot Owners] propose to
use to determine the area of accreted land, stated in his
declaration that the material is not suitable for the use
proposed by [Beach Lot Owners].

Under these circumstances, we cannot say the circuit

court abused its discretion by denying certification of a damages

class.

F. The circuit court's conclusion that the State
was the prevailing party is not material to
the issues presented by this appeal.

The circuit court ruled that the State was the

prevailing party in the action below. The ruling let the State

move for costs under HRCP Rule 54(d)(1). But the State's motion

for costs was also based on the State having served an HRCP

Rule 68 offer of settlement for $5,000, to which Beach Lot Owners

22
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

did not respond. Beach Lot Owners recovered no compensation.

Under HRCP Rule 68, Beach Lot Owners "must pay the costs incurred

after the making of the offer" of settlement. The State was

entitled to costs under HRCP Rule 68 whether or not it was the

prevailing party. Beach Lot Owners make no other argument about

why the circuit court's ruling that the State was the prevailing

party is material to this appeal. We need not decide the issue.

IV. CONCLUSION

For these reasons, we hold: (1) the law of the case

doctrine did not prevent the circuit court from considering a

change in the controlling legislation enacted after we decided

Maunalua Bay; (2) the circuit court's finding that just

compensation was $0 was not clearly erroneous; (3) Beach Lot

Owners were not entitled to nominal damages; (4) Beach Lot Owners

were not entitled to attorneys fees; (5) the circuit court did

not abuse its discretion by denying certification of a damages

class; and (6) the circuit court's determination that the State

was the prevailing party is moot. We affirm the circuit court's

Final Judgment entered on October 2, 2019.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Paul Alston,
Claire Wong Black, /s/ Karen T. Nakasone
for Plaintiffs-Appellants/ Associate Judge
Cross-Appellees.
/s/ Sonja M.P. McCullen
David D. Day, Associate Judge
William J. Wynhoff,
Deputy Attorneys General,
State of Hawai#i,
23
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

for Defendant-Appellee/
Cross-Appellant.

24