Robinson v. Ariyoshi
| Decision Date | 26 October 1977 |
| Docket Number | Civ. No. 74-32. |
| Citation | 441 F. Supp. 559 |
| Parties | Selwyn A. ROBINSON, Eleanor Robinson, Russell S. Robinson, Ruth R. LeFiell, Marion R. Keat, Jean R. Weir, Selwyn A. Robinson, Eleanor Robinson, Bruce B. Robinson, Trustees under the Will of Aylmer F. Robinson, Helen M. Robinson, Individually and as Executrix, Estate of Lester B. Robinson, Bruce B. Robinson and Keith P. Robinson, Plaintiffs, v. George R. ARIYOSHI, Acting Governor, George T. H. Pai, Attorney General, Andrew S. O. Lee, Deputy Attorney General, Sunao Kido, Newton Miyagi, Larry E. Mehau, Manuel Moniz, Jr., Moses W. Kealoha and Hisao Munechika, Chairman and Members, Board of Land and Natural Resources, McBryde Sugar Company, Limited, Olokele Sugar Company, Limited, Ida Albarado, Helen B. H. Chu, Henry J. Chu, Chee Kung Fui Society, Lapaz Francisco, Marcellino Francisco, Albert K. Kaailau, Linda P. Kaiakapu, Ann N. Kali, Harriet U. Kano, Junichi Kano, Kiyoshi Kimata, Arnold W. F. Leong, Katherine A. Leong, Lo Sun D. Leong, Tai Hing Leong, Hanayo T. Naumu, Wallace A. Naumu, Hideo Nonaka, Hiromi Nonaka, Iwao Nonaka, Kazuo Nonaka, Masa-Toshi Nonaka, Shigekichi Nonaka, Takano Nonaka and Takao Nonaka (small owners), Defendants. |
| Court | U.S. District Court — District of Hawaii |
COPYRIGHT MATERIAL OMITTED
J. Garner Anthony, John H. R. Plews, Anthony, Hoddick, Reinwold & O'Connor, Honolulu, Hawaii, for plaintiffs.
Ronald Y. Amemiya, Atty. Gen., Andrew S. O. Lee, Deputy Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants State Officials.
J. Russell Cades, Robert B. Bunn, Cades, Schutte, Fleming & Wright, Honolulu, Hawaii, for defendant McBryde Sugar Co.
William F. Quinn, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for defendant Olokele Sugar Co.
Robert B. Bunn, Cades, Schutte, Fleming & Wright, Honolulu, Hawaii, Clinton I. Shiraishi, Shiraishi & Yamada, Lihue, Kauai, Hawaii, for Small Owners.
DECISION
Succinctly stated, the nominal plaintiffs, the Robinson family (hereinafter G & R), ask this court:
(1) To enjoin defendants Ariyoshi, Amemiya, et al. (State Officials), who are respectively the Governor, Attorney General, Deputy Attorney General, and Chairman and Members of the Board of Land and Natural Resources of the State of Hawaii (State), from interfering with the transportation and use of waters of the Hanapepe River (River) for irrigation purposes in the same manner and with the same property rights therein as existed prior to the holdings of the Supreme Court of Hawaii (Supreme Court) in McBryde Sugar Company v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973) (McBryde I), and McBryde Sugar Company v. Robinson, 55 Haw. 260, 517 P.2d 26 (1973) (McBryde II), viz., that the right to running water could not have been and was not transferred into private ownership by the mahele and that therefore the in the River;1
(2) For a declaratory judgment that the decision of the Supreme Court in McBryde I is void and without effect to the extent that (a) it adjudicated the normal surplus water of the River to be the property of the State, subject only to appurtenant water rights (a claim never made by the State); (b) it adjudicated that rights to ancient appurtenant water cannot be separated from ownership of the land and can only be used on the land to which it was originally appurtenant; (c) it adjudicated that with respect to water awarded to them, neither McBryde nor G&R, nor any of the plaintiffs, may transport that water out of the watershed; and (d) that the English common law doctrine of riparian rights is the law governing the use of Hawaii's stream waters.
Also named as "defendants" were McBryde Sugar Company (McBryde), Olokele Sugar Company (Olokele) and Albarado, Chu et seq. (Small Owners). These nominal defendants in fact seek the same general relief against the State Officials as do G&R and, for purposes of this decision, unless particularly identified hereafter, they will herein be included with G&R in the term "plaintiffs" as distinguished from the nominal plaintiffs G&R. Olokele filed a cross claim against McBryde, the State Officials and the Small Owners, alleging that the decision in McBryde I, although not yet actually implemented by the State Officials, casts doubt upon the validity of its lease with G&R, seeking determination of its rights in and to the waters. McBryde also filed a counterclaim against G&R and the State Officials seeking a determination of its rights in and to the waters. The Small Owners also filed a similar counterclaim against the State Officials. All plaintiffs seek a permanent injunction against the State Officials interfering with their rights.
All plaintiffs claim that the judgment of the Supreme Court was entered (a) without subject matter jurisdiction and (b) with neither procedural nor substantive due process being given to the plaintiffs, in violation of the Constitution and statutes of the United States. This court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 2201, 2283, and 42 U.S.C. § 1983. As appears hereafter, the amount in controversy far, far exceeds $10,000.
In 1959, this case started like gentle tradewinds — each of the plaintiffs and the State claiming certain rights to and in the waters flowing down the River, in accordance with what each of the parties, including the State, thought was the well settled water rights law under Hawaiian statutes and decisions. McBryde filed its complaint on March 4, 1959 against the State, Olokele, Small Owners, etc., in the Fifth Circuit Court (Kauai) for determination of the appurtenant and prescriptive water rights of the parties and their rights to storm and freshet water in the River. No one, not even the State, raised any question about the severability of water rights from the riparian lands along the River, or the right to transport the River's waters for use out of its watershed. Nor was any question raised about the rights of the parties to the normal flow of surplus waters of the River (excepting only certain claims of rights therein acquired by prescription). All parties took for granted that these rights were solidly embedded in the law of waters of Hawaii. No one even mentioned the possible application of the English common law doctrine of riparian rights to Hawaiian waters.
The trial lasted from May 5 through August 17, 1965, and produced a record of 3,483 pages plus voluminous documentary exhibits. The trial judge's amended decision was filed January 30, 1969. In it he delineated the rights of the parties with respect to appurtenant water, prescriptive water, normal surplus water, and storm and freshet surplus water in the River.
All parties and the trial court accepted as unquestionably settled water rights law in Hawaii (1) that all normal surplus water belongs to the konohiki of the ahupuaa or ili kupono2 on which it originates, (2) that water rights are severable from riparian lands and may be freely transferred to any land, within or without the watershed upon which they arose, subject only to the water rights of others in the same waters, and (3) that water rights may be obtained by prescriptive use.
Only McBryde, G & R and the State appealed, their appeals concerning, primarily, the trial judge's rulings on appurtenant and prescriptive water rights,3 as well as the use of storm and freshet surplus water. The Supreme Court in McBryde I (a) upheld the trial court's adjudication of the appurtenant water rights of the State, McBryde and the Small Owners; (b) affirmed in part and reversed in part the adjudication of G&R's appurtenant rights; and (c) reversed the adjudication of McBryde's prescriptive rights.
Then, ignoring both H.R.S. § 602-5(1),4 and its own Rule 3(b)(3),5 the Supreme Court decided, sua sponte, without warning to any of the parties nor argument from them (a) that the State owned all the waters of the River, be they normal,6 storm or freshet, subject only to appurtenant riparian rights under English common law doctrine of riparian rights, which doctrine was declared to apply to all flowing surface waters of the State; (b) that there was no surplus water in any stream in the State — the State owned all flowing water; and (c) that neither G&R nor McBryde had any right to divert their appurtenant waters of the River outside its watershed.
As Justice Marumoto said in dissent: "That decision has no relation whatsoever to the judgment appealed from * * * and is neither within the issues raised and tried in the circuit court nor within the questions presented and argued to this court." McBryde I, 54 Haw. at 201, 504 P.2d at 1346.
The majority's rationale in McBryde I, for these completely revolutionary holdings was grounded entirely on (1) a specific portion of the Principles Adopted by the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to Them, adopted by the Land Commission on August 20, 1846 and approved by resolution in the Legislative Council on October 26, 1846, RLH 1925, Vol. II, 2124, 2128 (originally enacted as L.1847, at 81, 85) (hereinafter Land Commission Principles), which announced that the mahele left unimpaired the King's power "to encourage and even to enforce the usufruct of lands for the common good", id. at 186, and (2) § 7 of the Enactment of Further Principles (hereinafter Further Principles), originally published as L.1850, § 7, at 202, and presently compiled in HRS § 7-1, which, the court held, codified the doctrine of riparianism as it existed in Massachusetts and England in the mid-nineteenth century, and that under that doctrine water rights acquired by virtue of ownership of lands along the bank (ripa) of a stream or river were appurtenant exclusively to those parcels of land and could not be transferred to remote parcels. Id. at 191-98.
When all parties (except the State), including the non-appellant Small Owners and Olokele, petitioned for a rehearing, the court permitted G&R,...
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