Robinson v. Ariyoshi

• Decision Date: 20 February 1985
• Docket Number: No. 78-2264,78-2264
• Citation: 753 F.2d 1468
• Parties: Selwyn A. ROBINSON, et al., Plaintiffs-Appellees, v. George R. ARIYOSHI, Governor, et al., Defendants-Appellants, and McBryde Sugar Company, Limited, et al., Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1468

753 F.2d 1468

Selwyn A. ROBINSON, et al., Plaintiffs-Appellees, v. George R. ARIYOSHI, Governor, et al., Defendants-Appellants and McBryde Sugar Company, Limited, et al., Defendants.

No. 78-2264.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 12, 1984.

Decided Feb. 20, 1985.

Alexander C. Marrack, Hoddick, Reinwald, O'Connor & Marrack, plaintiffs-appellees.

J. Russell Cades, Robert B. Bunn, Cades Schutte Fleming & Wright, Honolulu, Hawaii, Telford Taylor, Taylor, Ferencz & Simon, Herbert Wechsler, New York City, William F. Quinn, Honolulu, Hawaii, Clinton Shiraishi, Shiraishi & Yamada, Lihue, Hawaii, for McBryde Sugar Co. Ltd., et al.

Williamson B.C. Chang, Sp. Deputy Atty. Gen., Honolulu, Hawaii, amicus curiae.

Ronald Albu, Honolulu, Hawaii, for Waihe'e Farmers Residents Ass'n.

Clinton R. Ashford, Mitsuo Uyehara, Honolulu, Hawaii, for Hawaiian Sugar Planters' Ass'n.

Andrew S.O. Lee, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellants.

Appeal from the United States District Court for the District of Hawaii.

Before GOODWIN and TANG, Circuit Judges, and GRANT ^*, District Judge.

GOODWIN, Circuit Judge.

The district court, in an action brought under 42 U.S.C. Sec. 1983 challenging an alleged threat to divest plaintiffs' irrigation water rights, enjoined the named state officials from taking any action to enforce a recent decree of the state courts that appeared to be adverse to the property rights of the plaintiffs. The state officials appeal, raising a number of procedural and substantive issues. We will first set out the factual context in which this dispute has kept territorial, state, and federal courts intermittently busy for more than sixty years.

Background

In 1889 the predecessors in title of the plaintiffs, Gay and Robinson, owned substantial land grants within the ahupuaa of Hanapepe, a local designation of land extending from the top of the central mountain mass of the Island of Kauai to the sea and roughly encompassing the drainage of the Hanapepe River. At the mauka, or upper part of the ahupuaa, the annual rainfall ranges from four to five hundred inches. At lower elevations rainfall averages as little as twenty-three inches and in many parts of the ahupuaa most types of agriculture are not possible without irrigation.

In the early days of the development of sugar cane fields on Kauai, the owners and lessees of the privately-owned lands built dams, flumes and ditches in order to distribute the abundant rainfall from the wettest portions of their lands to fertile but dry neighboring land areas. As the years went by and more lands were brought into production, the irrigation works became fairly elaborate. By 1922 Gay and Robinson had been to court at least once and had their title confirmed by the territorial courts to a substantial portion of the lands. The lands known as the Ili of Koula were drained by the Koula branch of the Hanapepe River, and from this drainage substantial volumes of irrigation water were diverted into a dry area that was outside the Hanapepe ahupuaa. Similar diversions of water to dry land were being made contemporaneously by Gay and Robinson from their nearby lands in the Ili of Manuahi, the other principal branch feeding the Hanapepe River. This state of affairs had evolved gradually over the years, beginning before 1891, and has been in effect more or less continually until the present time.

In the 1920's the territorial government's increasing interest in water for the development of dry lands at lower elevations, some of which were owned or controlled by the Territory of Hawaii, produced litigation which in 1931 resulted in a decree of the Territorial Court. The Territorial Court held that Gay and Robinson were the owners of "normal surplus" water flowing from their Ilis of Koula and Manuahi into the Hanapepe River, and confirmed their right to divert that water for use outside the Hanapepe drainage. Territory v. Gay, 31 Hawaii 376, 387-88 (1930), aff'd, 52 F.2d 356 (9th Cir.), cert. denied, 284 U.S. 677, 52 S.Ct. 131, 76 L.Ed. 572 (1931) (Territory I ).

In 1941 the Olokele Sugar Company succeeded to certain lands that were being supplied with irrigation water from the Gay and Robinson engineering efforts, and in 1949 the Gay and Robinson successors opened a new tunnel to supply water to their own and Olokele lands known locally as the Makaweli district.

The Hawaiian Statehood Act, Pub.L. No. 86-3, 73 Stat. 4, reprinted in 1959 U.S.Code Cong. & Ad.News 5, inter alia, confirmed existing statutory law of the territory and approved the new state's constitution. Gay and Robinson claim that the state constitution includes protection of their court-decreed and vested right to divert and use water from their mauka lands drained by the Koula and Manuahi branches of the Hanapepe. ¹ The state officials, however, argue as if the matter were open for a fresh decision, that the private use outside the ahupuaa of a large volume of Hanapepe water by Gay and Robinson and their associates is both undesirable and contrary to state law.

In 1959 the McBryde Sugar Company commenced in the new state court an action against a number of defendants, among whom Gay and Robinson were named. McBryde sued the state, Olokele, Gay and Robinson, and others referred to as the "small owners" to obtain a declaration of the rights of various parties along the Hanapepe upstream and downstream to various water rights, appurtenant, prescriptive, "ancient," or otherwise derived. The Hawaii state trial court in 1968 declared in a 65-page decision the rights of the parties including "other" small holders whose "ancient" and "appurtenant" rights were acknowledged by the principal parties in the controversy. McBryde Sugar Co. v. Robinson, S.P. No. 108 (5th Cir.Ct. of Hawaii, Dec. 10, 1968). Both the state and the larger owners appealed to the Supreme Court of Hawaii, challenging various portions of the trial court's decree. No party questioned existing Hawaii water law as announced in a number of earlier territorial cases.

The Supreme Court of Hawaii in 1973 sua sponte overruled all territorial cases to the contrary and adopted the English common law doctrine of riparian rights. McBryde Sugar Co. v. Robinson, et al., 54 Hawaii 174, 504 P.2d 1330, 1344 (1973). In this decision, which we will refer to as McBryde I, the court also held sua sponte that there was no such legal category as "normal daily surplus water" and declared that the state, as sovereign, owned and had the exclusive right to control the flow of the Hanapepe River. Id. 504 P.2d at 1345. McBryde I further announced that because the flow of the Hanapepe was the sovereign property of the State of Hawaii, McBryde's claim of a prescriptive right to divert water could not be sustained against the state. Id.

The parties adversely affected by the holding in McBryde I petitioned for rehearing and the state supreme court allowed a rehearing on the limited issue of the proper construction of Hawaii Rev.Stat. Sec. 7-1 (a century-old territorial statute dealing largely with drinking water and rights of way on roads over private lands) and the meaning of the word "appurtenant". The parties attempted to enlarge the scope of the rehearing to include state and federal constitutional claims but their attempt was summarily rejected. See Robinson v. Ariyoshi, 441 F.Supp. 559, 564 (D.Hawaii 1977) (Robinson I ). Rehearing was denied in McBryde Sugar Co. v. Robinson, 55 Hawaii 260, 517 P.2d 26 (1973) (McBryde II ). ² In due course the Supreme Court of the United States denied review, McBryde Sugar Co. v. Hawaii, 417 U.S. 962, 94 S.Ct. 3164, 41 L.Ed.2d 1135 (1974) (McBryde III ), and in 1974 this litigation began in the United States District Court for the District of Hawaii. The decision in the district court permanently enjoined the named state officials from enforcing against these plaintiffs any "new law" announced in McBryde I and II. Robinson I, 441 F.Supp. at 586.

The leisurely pace of this litigation has produced three oral arguments in this court, two of which were followed by referral of certified questions to the Supreme Court of Hawaii. See Robinson v. Ariyoshi, 65 Hawaii 641, 658 P.2d 287 (1982) ( Robinson II ). Following the publication of the state court's answers to the certified questions, the parties briefed the remaining issues that had been narrowed by the earlier proceedings and reargued the case. A number of complex questions remain, but to expedite the matter we will discuss only those essential to a resolution of the main question: Can the state, by a judicial decision which creates a major change in property law, divest property interests?

Jurisdiction

Before we can address that constitutional question (tendered by the Sec. 1983 claims in this case), we must first dispose of preliminary questions concerning our jurisdiction. The state officials argue: (1) there is no case or controversy because no state officer has made any demand upon the plaintiffs to remove or to cease using their water diversion works; and (2) the plaintiffs' property rights are defined by state law and the state courts have defined those rights. The state officials argue that any federal question that may have remained following McBryde II in 1973 has been precluded by the doctrine of res judicata at all times after the United States Supreme Court denied both appellate review and certiorari in McBryde III.

Case or Controversy

First, as to case or controversy, we hold that even though the named state officials have not as yet filed actions at law or commenced administrative proceedings against the plaintiffs, the litigation history of the past half century, together with the language of McBryde I and II, constitutes a sufficient cloud upon the title of the plaintiffs so as to interfere substantially with the financing of improvements or any potential sale of their lands. The dispute constitutes a case...