Bridge Aina Le’a, LLC v. Hawaii Land Use Commission

Issues: (1) Whether, as the U.S. Court of Appeals for the 9th Circuit’s extensive, published ruling eliminates property owners’ ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including the Supreme Court, the Supreme Court needs to clarify the rules for recovery for temporary regulatory takings; (2) whether, in light of the confusion in the lower courts as to the application of the factors from Penn Central Transportation Co. v. New York City — to the point where it has become almost impossible for property owners to prevail on this theory — the Supreme Court should reexamine and explain how Penn Central analysis is supposed to be done — or dispensed with; (3) whether, in light of the 9th Circuit’s holding that almost no value loss — no matter how great — can ever establish a temporary taking under either Lucas v. South Carolina Coastal Council or Penn Central, it is necessary for the Supreme Court to clarify the standards; and (4) whether, in light of Penn Central’s clear direction that cases like this are to be determined ad hoc, on their individual facts, and the Supreme Court’s approval in City of Monterey v. Del Monte Dunes, that takings liability be decided by a jury, appellate courts need to stay their hands (as mandated by the Seventh Amendment’s re-examination clause) when — as here — reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings.