Dw Aina Le‘adevelopment, LLC v. STATE OF HAWAII LAND USE COMMISSION; DOES, Governmental Units, 1-10; STATE OF HAWAII

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DW AINA LE‘A DEVELOPMENT, LLC,
Plaintiff-Appellant,
v.
STATE OF HAWAII LAND USE
COMMISSION; DOES, Governmental
Units, 1-10; STATE OF HAWAII,
Defendants-Appellees.
No. 17-16280
D.C. No.
1:17-cv-00113-SOM-RLP
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted February 12, 2019
Submission Withdrawn March 7, 2019
Resubmitted January 22, 2021
University of Hawaii Manoa
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Plaintiff/Appellant DW Aina Le<a Development (DW) appeals the district
court’s dismissal of its takings claims under both the United States and Hawai‘i
FILED
JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Constitutions as time-barred. Because the parties are familiar with the facts, we
will not recite them here. We have jurisdiction under 28 U.S.C. § 1291. We
reverse in light of the Hawai‘i Supreme Court’s recent answer to our certified
question.
Following oral argument, we certified the question regarding the applicable
statute of limitations for a takings claim brought under the Hawai‘i Constitution.
The state court has now answered that question, holding that “the statute of
limitations for a regulatory taking is six years, pursuant to the catch-all statute of
limitations in Hawai‘i Revised Statutes (HRS) § 657-1(4).” DW Aina Le‘a Dev.,
LLC v. Haw. Land Use Comm’n, __P.3d__, No. SCCQ-19-0000156, 2020 WL
7394265, at *1 (Haw. Dec. 17, 2020). In light of the Hawai‘i Supreme Court’s
judgment, we vacate the district court’s dismissal of DW’s state takings claim.
We also vacate the district court’s dismissal of DW’s federal takings claim.
There is no federal statute of limitations for federal takings claims brought
against a state. When, as here, there is no “controlling federal limitations period,
the general rule is that a state limitations period for an analogous cause of action is
borrowed and applied to the federal claim, provided that the application of the state
statute would not be inconsistent with underlying federal policies.” Cnty. of
Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 (1985). In this case, the most
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analogous cause of action would be an inverse condemnation action under state
law, which––as discussed—the Hawai‘i Supreme Court just informed us has a six-
year statute of limitations. Applying the six-year statute of limitations, then,
DW’s state and federal takings claims are timely.
REVERSED AND REMANDED.
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