FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIDGE AINA LE‘A, LLC,

Plaintiff-Appellant/Cross-Appellee,

v.

STATE OF HAWAII LAND USE 

COMMISSION; VLADIMIR P. DEVENS, 

in his individual and official 

capacity; KYLE CHOCK, in his 

individual and official capacity; 

NORMAND ROBERT LEZY, in his 

individual and official capacity; 

DUANE KANUHA, in his official 

capacity; CHARLES JENCKS, in his 

official capacity; LISA M. JUDGE, in 

her individual and official capacity; 

NICHOLAS W. TEVES, JR., in his 

individual and official capacity; 

RONALD I. HELLER, in his individual 

and official capacity,

Defendants-Appellees/CrossAppellants.

Nos. 18-15738

18-15817

D.C. No.

1:11-cv-00414-

SOM-KJM

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan O. Mollway, District Judge, Presiding

Argued and Submitted October 21, 2019

Honolulu, Hawaii
2 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

Filed February 19, 2020

Before: SUSAN P. GRABER, MILAN D. SMITH, JR., 

and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Civil Rights/Takings

The panel affirmed the district court’s dismissal of 

plaintiff’s equal protection claim, reversed the denial of 

defendant’s motion for judgment as a matter of law, vacated 

a judgment entered for plaintiff following a jury verdict, and 

remanded with instructions to enter judgment for defendant, 

in an action arising from the State of Hawaii’s Land Use 

Commission’s 2011 reversion of 1,060 acres on the island of 

Hawaii from a conditional urban land use classification to 

the prior agricultural use classification.

The Commission’s reversion followed some twenty-two 

years during which various landowners made unfulfilled 

development representations to the Commission to obtain 

and maintain the land’s urban use classification. Plaintiff

Bridge Aina Le‘a, LLC, one of the landowners at the time of 

the reversion, challenged the reversion’s legality and 

constitutionality in a state agency appeal, and in this case 

Following trial, a jury made dual findings that there was a 

regulatory unconstitutional taking of plaintiff’s property 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 3

pursuant to both Lucas v. South Carolina Coastal Council, 

505 U.S. 1003 (1992), and Penn Central Transportation 

Company v. City of New York, 438 U.S. 104 (1978). The 

district court determined that either finding independently 

supported the verdict; denied, in part, the State’s motion for 

judgment as a matter of law (JMOL); entered judgment for 

plaintiff; and awarded $1 in nominal damages. Following 

entry of judgment, the district court denied the State’s 

renewed JMOL motion.

The panel held that the district court erred in denying the 

State’s renewed JMOL motion because plaintiff’s evidence 

did not establish a taking pursuant to either Lucas or Penn 

Central. The panel held that there was no taking pursuant to 

Lucas because the land retained substantial residual value in 

its agricultural use classification and this classification still 

allowed plaintiff to use the land in economically beneficial 

ways. Accordingly, the panel concluded that the State was 

entitled to judgment as a matter of law on plaintiff’s Lucas 

theory, and turned to the Penn Central analysis.

Applying the Penn Central factors to the trial evidence, 

the panel concluded that the jury could not reasonably find 

for plaintiff. The panel first determined that the valuation 

evidence, properly understood, weighed strongly against a 

taking pursuant to the first Penn Central factor. The panel 

rejected plaintiff’s assertion that the disruption of a land 

sales agreement showed economic impact, noting that the 

record showed that plaintiff overstated the reversion’s 

impact on its contractual relationship with the potential 

purchaser. The panel held that the Commission’s reversion 

order did not interfere with plaintiff’s reasonable 

investment-backed expectations at the time of acquisition. 

The panel noted that the Commission had made clear in 

1991, before plaintiff purchased the property, that it might 
4 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

issue an order to show cause as to why the land should not 

revert for failure to substantially comply with 

representations made to obtain reclassification. Hawaii law 

expressly authorized the Commission to impose this 

condition, and such conditions ran with title to the land. The 

panel further noted that plaintiff had expressly committed to 

build 385 affordable housing units as a part of an amendment 

to the order governing the land’s conditional urban use 

classification and had failed to complete the units.

The panel next considered the character of the reversion 

order and held that the concentrated effect of the reversion 

was reflective of the confines of a generally applicable 

Hawaii law land use reclassification procedure. The panel 

further held that the Hawaii Supreme Court’s invalidation of 

the reversion as a matter of Hawaii statutory procedural 

requirements did not carry the constitutional significance 

that either plaintiff or the district court ascribed to it.

The panel concluded that because plaintiff’s own 

evidence established a diminution in value that was 

proportionately too small and because the reversion did not 

interfere with plaintiff’s reasonable investment-backed 

expectations for the land, no reasonable jury could conclude 

that the reversion effected a taking pursuant to the Penn 

Central analysis. The panel held that its analysis of 

plaintiff’s taking theories required it to reverse the district 

court’s denial of the State’s renewed JMOL motion. The 

panel further vacated the judgment for plaintiff and the 

nominal damages award, and remanded with instructions for 

the district court to enter judgment for the State.

Addressing the dismissal of plaintiff’s equal protection 

claim, the panel held that the claim was barred by the Hawaii 

Supreme Court’s decision in plaintiff’s agency appeal. 

Thus, applying Hawaii law, the panel could find no material 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 5

difference between the equal protection issue plaintiff raised 

in the agency appeal and the one raised in this suit. The 

panel further rejected plaintiff’s contention that the Hawaii 

Supreme Court’s remand for further proceedings consistent 

with its opinion rendered the judgment nonfinal. The panel 

noted that the Hawaii Supreme Court expressly vacated the 

Hawaii circuit court’s judgment on the issue of equal 

protection and remanded for the circuit court to effectuate 

that vacatur. That remand could not have resulted in a 

different resolution of plaintiff’s equal protection challenge 

because no issue of law or fact regarding that challenge 

remained unresolved. Finally, the panel held that plaintiff 

received a full and fair opportunity to raise the equal 

protection challenge in the agency appeal.

COUNSEL

Bruce D. Voss (argued), Matthew C. Shannon, and John D. 

Ferry III, Bays Lung Rose & Holma, Honolulu, Hawaii, for 

Plaintiff-Appellant/Cross-Appellee.

Ewan C. Rayner (argued), Deputy Solicitor General; David 

D. Day, Deputy Attorney General; William J. Wynhoff, 

Supervising Deputy Attorney General; Clyde J. Wadsworth, 

Solicitor General; Department of the Attorney General, 

Honolulu, Hawaii; for Defendants-Appellees/CrossAppellants.
6 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

OPINION

M. SMITH, Circuit Judge:

This case stems from the reversion of the land use 

classification of 1,060 acres of largely vacant and barren, 

rocky lava flow land in South Kohala, on the island of 

Hawaii. In 2011, Defendant-Appellee and Cross-Appellant 

the State of Hawaii Land Use Commission (the 

Commission) ordered the land’s reversion from its 

conditional urban use classification to its prior agricultural 

use classification. This reversion followed some twenty-two 

years during which various landowners made unfulfilled 

development representations to the Commission to obtain 

and maintain the land’s urban use classification. PlaintiffAppellant and Cross-Appellee Bridge Aina Le‘a, LLC 

(Bridge), one of the landowners at the time of the reversion, 

challenged the reversion’s legality and constitutionality in a 

state agency appeal, and in this case.

The cross-appeals here come to us following a final 

judgment in a jury trial with a verdict for Bridge and the 

district court’s denial of a post-judgment motion for 

judgment as a matter of law (JMOL). Although the parties 

raise several issues, we need decide only two. First, we must 

decide whether the State1 was entitled to JMOL on Bridge’s 

1 We use the term “the State” to refer collectively to the Commission 

and the commissioners whom Bridge sued in their official capacities. 

See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials 

in their official capacity . . . should be treated as suits against the State.”). 

The commissioners whom Bridge named in their official capacities are: 

Vladimir P. Devens, Kyle Chock, Normand R. Lezy, Lisa M. Judge, 

Nicholas W. Teves, Jr., Ronald I. Heller, Duane Kanuha, Thomas 

Contrades, and Charles Jencks. Bridge sued all but the last two 

commissioners—neither of whom voted for the reversion—in their 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 7

claims that the reversion was a regulatory taking in violation 

of the Fifth Amendment. After an eight-day jury trial, the 

jury found that the reversion was such a taking. The State 

urges us to reverse on the ground that Bridge’s evidence did 

not establish a taking. Second, we must decide whether the 

Hawaii Supreme Court’s adjudication of Bridge’s equal 

protection challenge in the state agency appeal barred the 

same issue Bridge alleged here. See DW Aina Le‘a Dev., 

LLC v. Bridge Aina Le‘a, LLC, 339 P.3d 685 (Haw. 2014). 

Bridge contends that the Hawaii Supreme Court neither 

decided the same equal protection issue Bridge raised in this 

lawsuit, nor issued a final judgment on the merits in which 

Bridge had a full and fair opportunity to litigate the issue.

We reverse the denial of the State’s renewed JMOL 

motion because, as a matter of law, the evidence did not 

establish an unconstitutional regulatory taking. We vacate 

the judgment and remand. We affirm the district court’s 

dismissal of Bridge’s equal protection claim.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Reclassification History of the 1,060 Acres

A. The Conditional Urban Reclassification

For over forty years before the reclassification, the 1,060 

acres at issue were vacant and part of a larger 3,000 acreparcel zoned for agricultural use. This classification 

generally restricted the landowner to certain statutorily 

specified uses. See Haw. Rev. Stat. § 205-2(d)(1)–(16) 

(setting forth the general uses for agricultural land); see also 

individual capacities as well. Commissioner Contrades died during the 

pendency of this litigation before the district court.
8 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

id. § 205-4.5 (elaborating on permissible uses of agricultural 

land depending on soil ratings). The landowner also could 

petition to obtain a permit for “certain unusual and 

reasonable uses.” Id. § 205-6(a).

In 1987, non-party Signal Puako Corporation (Signal), 

the then-landowner, decided that it would seek to develop a 

mixed residential community on the 1,060 acres as the first 

phase of a development project on the entire 3,000 acres. To 

do so, Signal petitioned the Commission to reclassify 1,060 

acres as urban pursuant to Hawaii’s land use reclassification 

procedure. See Haw. Rev. Stat. § 205-4(a). If the land were 

zoned for urban use, Signal could pursue “activities or uses 

as provided by ordinances or regulations of the county 

within which the urban district is situated.” Id. § 205-2(b).

The Commission approved the petition in a January 1989 

order (the 1989 Order). In doing so, the Commission 

exercised its authority to “modify the petition by imposing 

conditions necessary . . . to assure substantial compliance 

with representations made by the petitioner in seeking a 

boundary change.” Id. § 205-4(g). In relevant part, 

Condition One required Signal to make 60% of the proposed 

2,760 residential units affordable, for a total of 1,656 

affordable housing units. Condition Nine required Signal to

develop the land in substantial compliance with 

representations made to obtain reclassification. The 1989 

Order did not specify any deadlines, nor did the order specify 

any penalties for noncompliance. Nevertheless, the 

conditions the Commission imposed ran with the title to the 

land. Id.

At some point, non-party Puako Hawaii Properties 

(Puako), an entity in which Signal was a partner, took title to 

the 3,000 acres. Puako proposed a mixed residential 

community which would have fewer total housing units than 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 9

Signal’s proposal and for which construction would end by 

1999. Puako therefore petitioned to modify the 1989 Order.

The Commission approved Puako’s petition in a July 

1991 order (the 1991 Order) with conditions. Like the 1989 

Order, the 1991 Order required Puako to make 60% of the 

residential units affordable housing. But the 1991 Order 

reduced the required affordable housing units to 1,000 units 

given the reduction to the proposed development’s total 

number of units. The 1991 Order again imposed a condition 

requiring Puako to develop the land in substantial 

compliance with its representations. This time, the 

Commission specified that “[f]ailure to so develop the 

Property may result in reversion of the Property to its former 

classification or change to a more appropriate 

classification.”2

Notwithstanding Puako’s representations, the 1,060 

acres remained undeveloped by 1999. Bridge acquired the 

entire 3,000 acres at this time—inclusive of the 1,060 acres 

2 This language tracked a 1990 amendment to the Commission’s 

statutory authority to impose reclassification conditions pursuant to 

Hawaii Revised Statute § 205-4(g). The statute specifies that “[t]he 

commission may provide by condition that absent substantial 

commencement of use of the land in accordance with such 

representations, the commission shall issue and serve upon the party 

bound by the condition an order to show cause why the property should 

not revert to its former land use classification or be changed to a more 

appropriate classification.” Haw. Rev. Stat. § 205-4(g); see also DW 

Aina Le‘a Dev., 339 P.3d at 709 (“This sentence was added to [] § 205-

4(g) in 1990. The legislative history indicates that the legislature sought 

to empower the [Commission] to void a district boundary amendment 

where the petitioner does not substantially commence use of the land in 

accordance with representations made to the [Commission].” (citations 

and emphasis omitted)).
10 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

of conditionally reclassified urban land—for $5.2 million 

plus closing costs under its then-name Bridge Puako, LLC.

B. The Post-Acquisition Amendments to the 

Conditions

In September 2005, nearly six years after acquiring the 

land, Bridge moved to amend the 1991 Order in part. Like 

the prior landowners, Bridge proposed a mixed residential 

community. Bridge, however, argued that the cost of 

complying with the 1991 Order’s affordable housing 

condition was too high. According to Bridge, it would be 

economically infeasible to develop the property without a 

lower level of required affordable housing units. Bridge 

contended that an appropriate benchmark would be the 20% 

level set by a then-recent County of Hawaii affordable 

housing ordinance.

The Commission amended the affordable housing 

condition in a November 2005 order (the 2005 Order). 

Condition One set the affordable housing unit requirement 

at 20%, requiring Bridge to build a minimum of 385 units. 

For the first time, the Commission set a deadline for the 

condition. Specifically, Bridge had to provide occupancy 

certificates for all affordable housing units by November 17, 

2010. The Commission affirmed all other conditions of the 

1989 Order, as amended by the 1991 Order.

Throughout 2006 and 2007, Bridge appeared before the 

Commission to assure the Commission of its compliance 

with the conditions, including through the apparent 

construction of wells, roads, and other infrastructure. 

According to Bridge, however, further progress “was 

hampered somewhat” by the requirement that Bridge 

prepare an environmental impact statement for the project in 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 11

accordance with Sierra Club v. Department of 

Transportation, 167 P.3d 292 (Haw. 2007).

C. The Order to Show Cause (OSC)

As early as September 2008, several commissioners 

expressed concerns that Bridge’s status reports “showed ‘no 

activity’ with respect to the conditions imposed by the 1991 

decision and order, as amended in 2005.” DW Aina Le‘a 

Dev., 339 P.3d at 693. In December 2008, the Commission 

ordered Bridge to show cause why the land should not revert 

to its prior agricultural use classification. The Commission 

explained that it had reason to believe that Bridge and its 

predecessors had failed to satisfy multiple reclassification 

conditions and had not fulfilled various representations.

The Commission held the first OSC hearing in January 

2009. Notwithstanding the potential impact ongoing OSC 

proceedings might have on the use of the land, Bridge agreed 

to sell the 1,060 acres to non-party DW Aina Le‘a 

Development, LLC (DW). Pursuant to a February 2009 

written agreement, Bridge was to convey the land in three 

phases in exchange for a total of $40.7 million.3 Bridge and 

DW would enter into a joint agreement, in which Bridge 

would develop the nearly 2,000 agricultural use acres 

remaining in its possession. Bridge would retain the right to 

plan for the overall 3,000 acres, including the placement of 

a sewage treatment plant, school, and park on the 

agricultural land.

3 This agreement replaced the prior 2008 sale agreement between 

Bridge and non-party Relco Corporation (Relco). Bridge and Relco

amended that agreement before it closed so that Relco could give its 

interest to DW. Relco, however, was DW’s managing entity.
12 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

On April 30, 2009, the Commission reconvened to 

discuss the OSC. Bridge represented to the Commission that 

it was in the process of transferring the 1,060 acres to DW, 

which would assume the responsibility of constructing the 

385 affordable housing units. The State Office of Planning 

advocated for reversion, noting that Bridge indicated that it 

could not complete the 385 affordable housing units by the 

November 2010 deadline. Various commissioners 

expressed dismay at what they viewed as unfulfilled 

promises made to obtain the reclassification.

At the conclusion of the hearing, the Commission held a 

voice vote on the OSC (the 2009 Voice Vote), in which 

seven commissioners voted to revert the zoning of the 1,060 

acres to agricultural use. The Commission never put the 

result of the vote into a final written order.

After the 2009 Voice Vote, DW did not make any 

payments due pursuant to the February 2009 sale agreement. 

Nevertheless, in the month following the vote, DW 

intervened in the OSC proceedings and advised the 

Commission that any reversion would make development 

impossible, including providing the 385 affordable housing 

units. DW moved to stay any decision and order pending 

consideration of additional information, including an overall 

conceptual plan for the project and an affordable housing 

unit site plan. The Commission agreed to stay the 

proceedings in June 2009.

In August 2009, Bridge and DW co-petitioned the 

Commission to rescind the OSC, contending that they had 

performed, or were in the process of performing, all the 

conditions the OSC cited. They also contended that the 2009 

Voice Vote “put an immediate and substantial cloud over the 

Project, making it extremely difficult in this economic 

environment to secure short-term or long-term financing to 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 13

develop and complete the Project.” Nevertheless, Bridge 

and DW represented that DW would still pursue completion 

of the 385 units by November 17, 2010, and that the units 

“will be provided” if the Commission rescinded the OSC. 

The Commission rescinded the OSC in September 2009, 

subject to the single “condition precedent” of requiring the 

construction of sixteen affordable units by March 31, 2010.

Following the OSC’s rescission, Bridge and DW 

modified their sale agreement in December 2009 to change 

the timing of purchases but they retained the previously 

agreed-upon $40.7 million price. DW would buy a 60-acre 

affordable housing parcel for $5 million, effective December 

11, 2009. DW also would pay Bridge “development 

expenses” of some $1.191 million for that parcel. The final 

closing date for the remaining 1,000 acres was set for 

February 28, 2010, by which point DW would have paid 

Bridge an additional $35.7 million. Consistent with this 

agreement, DW purchased the 60-acre parcel from Bridge in 

December 2009.

D. The Resumption of OSC Proceedings and the 

Reversion Order

On June 10, 2010, DW informed the Commission that it 

had completed the sixteen affordable housing units by the 

March 2010 deadline. In response, the State Office of 

Planning informed the Commission that the units were not 

habitable because they lacked water, a sewage system, 

electricity, and paved road access.

The Commission held a compliance hearing in July 

2010, at which both Bridge and DW appeared. DW admitted 

that it lacked the money to build on the remaining 1,000 

acres. The State Office of Planning requested that the 

Commission reopen the OSC and advocated for reversion so 
14 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

that a “bona fide developer” could make a new proposal. All 

commissioners voted to reinstate the OSC, scheduled an 

OSC hearing, and entered a finding that the condition 

precedent had not been satisfied. About two weeks 

thereafter, the Commission issued an order reinstating the 

OSC and reiterating the 2005 Order’s November 17, 2010 

deadline to obtain 385 affordable housing unit occupancy 

certificates. Bridge contends that after the reinstatement, 

DW failed to make the additional $35.7 million in payments 

for the remaining urban land as contemplated by the 

modified December 2009 agreement.

Bridge and DW moved to bar action on the OSC, arguing 

that the Commission’s enforcement actions, starting with the 

OSC, violated various Hawaii statutes and administrative 

rules. At the conclusion of a second OSC hearing, however, 

five commissioners voted to revert the land. With the 

approval of a sixth commissioner, the Commission issued a 

final reversion order (the Reversion Order) on April 25, 

2011.

The Reversion Order found that Bridge and DW had 

failed to comply with the 2005 Order’s affordable housing 

condition, specifically noting that Bridge and DW had not 

completed 385 affordable housing units by the deadline and 

were unlikely to do so in the near future. Although the order 

acknowledged that Bridge and DW had constructed sixteen 

affordable housing units, the order determined that there was 

no infrastructure connected to them. The order outlined 

violations of the 1991 Order’s substantial compliance 

condition based on representations made to the Commission 

between 2005 and 2010. The order also found that Bridge’s 

and DW’s procedural due process rights were not violated 

because they had received a full and fair opportunity to 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 15

present their case. The order declined to resolve Bridge’s 

equal protection challenge.

At the time of the Reversion Order, DW had purchased 

only the 60-acre affordable housing parcel while Bridge still 

owned the remaining 1,000 acres. The closing dates for the 

remaining 1,000 urban acres had passed several months 

earlier without DW making the additional $35.7 million in 

agreed-upon payments to Bridge.

II. The Direct Agency Appeal of the Reversion Order

Bridge and DW appealed the Reversion Order to a 

Hawaii circuit court. Although the court declined to 

preliminarily stay the Reversion Order, the court issued an 

amended final judgment in June 2012 in Bridge’s favor. The 

court determined that the Commission had violated various 

Hawaii statutory procedural requirements in issuing the

Reversion Order. The court also determined that the process 

by which the Commission issued the order violated Bridge’s 

and DW’s federal and state constitutional due process and 

equal protection rights. Thus, the circuit court vacated the 

Reversion Order and voided the OSC.

On appeal, the Hawaii Supreme Court affirmed in part 

and vacated in part the circuit court’s judgment. The Hawaii 

Supreme Court acknowledged the Commission’s authority 

to revert the land use classification, as well as the propriety 

of the December 2008 OSC. DW Aina Le‘a Dev., 339 P.3d 

at 711, 713. The court, however, affirmed the circuit court’s 

determination that the Reversion Order violated applicable 

statutory procedural requirements.

The Hawaii Supreme Court explained that a reversion 

may or may not be subject to certain procedural 

requirements. Id. at 709–10. If a petitioner fails to 
16 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

substantially commence use of the land in accordance with 

its representations, then the Commission may revert a land 

use classification pursuant to Hawaii Revised Statute § 205-

4(g) subject to a limited procedure. Id. at 710. However, if 

a petitioner has substantially commenced use, the 

Commission must follow the requirements of Hawaii 

Revised Statute § 205-4(h). Id. at 689, 714. The court 

determined that Bridge and DW had substantially 

commenced use after the Commission rescinded the OSC 

because DW actively prepared development plans and 

constructed sixteen affordable housing units by March 31, 

2010. Id. at 712−14. Thus, the Commission had to find 

within 365 days of the OSC’s initial issuance and by a “clear 

preponderance of the evidence” that reversion was 

reasonable, did not violate Hawaii Revised Statute § 205-2 

and was otherwise consistent with the policies and criteria 

set forth in Hawaii Revised Statute §§ 205-16 and 205-17. 

Id. at 714; see also Haw. Rev. Stat. § 205-4(h). The 

Commission had failed to do so. DW Aina Le‘a Dev., 339 

P.3d. at 714.

The Hawaii Supreme Court vacated the remainder of the 

circuit court’s judgment. With respect to the due process 

ruling, the Hawaii Supreme Court concluded that Bridge and 

DW had received notice and a meaningful opportunity to be 

heard before the reversion. Id. at 716. Noting that “the land 

had changed hands numerous times,” that the Commission 

“had amended the original reclassification order on multiple 

occasions,” and the “long history of unfulfilled promises 

made in connection with the development of this property,” 

the court determined that the reversion was not “arbitrary 

and unreasonable.” Id. at 717. With respect to equal 

protection, the court could not find that the Commission 

lacked a rational basis for its treatment of Bridge and DW 

“[g]iven the long history of this property and the 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 17

[Commission’s] dealings with the landowners over the 

course of many years.” Id. at 718. The court otherwise 

reasoned that the Commission acted pursuant to its broad 

statutory authority to impose conditions and its related 

authority to enforce such conditions. Id. The court 

remanded for proceedings consistent with its decision. Id.

III. The Proceedings in this Case

Although Bridge and DW together pursued the agency 

appeal, Bridge alone sued the Commission and 

commissioners in Hawaii state court in June 2011.4 Bridge’s 

eleven-count complaint for declaratory, injunctive, and 

monetary relief raised federal and state constitutional due 

process, equal protection, and taking claims. Bridge sued all 

commissioners in their official capacities and sued the six 

commissioners who had voted for the Reversion Order in 

their individual capacities as well. Alleging that the $40.7 

million DW agreed to pay for the 1,060 acres was the land’s 

fair market value, Bridge claimed “not less” than $35.7 

million in damages.

The State removed the case to federal court and moved 

to dismiss. Before ruling on that motion, the district court 

ordered a stay of the proceedings pending the agency appeal, 

an order which the parties cross-appealed to our court. After 

the Hawaii Supreme Court’s decision, we remanded to the 

4 DW sued the Commission in Hawaii state court in 2017, asserting 

federal and state constitutional taking claims. After the case’s removal 

to federal court, a district court dismissed DW’s claims as barred by the 

Hawaii statute of limitations. Our court has certified to the Hawaii 

Supreme Court a question regarding the proper statute of limitations for 

a taking claim raised pursuant to Hawaii law. See DW Aina Le‘a Dev., 

LLC v. Haw. Land Use Comm’n, 918 F.3d 602, 609 (9th Cir. 2019)

(certification order).
18 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

district court. Bridge Aina Le‘a, LLC v. Chock, 590 F. App’x 

705 (9th Cir. 2015) (unpublished).

On remand, the district court granted the State’s motion 

to dismiss, which concerned only some of Bridge’s claims. 

The court dismissed Bridge’s due process and equal 

protection claims, reasoning that the Hawaii Supreme 

Court’s decision barred re-litigation of the same issues. 

Applying the doctrine of quasi-judicial immunity, the court 

dismissed Bridge’s individual capacity claims against the 

commissioners who voted for reversion. Ultimately, only 

Bridge’s taking claims proceeded to trial on the theory that 

the reversion was an unconstitutional regulatory taking 

pursuant to the analyses in Lucas v. South Carolina Coastal 

Council, 505 U.S. 1003 (1992), and Penn Central 

Transportation Company v. City of New York, 438 U.S. 104 

(1978).

A jury trial was held between March 13 and 23, 2018. 

After Bridge put on its case-in-chief, the State moved for 

JMOL on the grounds that Bridge had not established either 

a Lucas or Penn Central taking and, even if it had, Bridge 

should receive only nominal damages because Bridge lacked 

admissible evidence of just compensation. The district court 

granted the motion as to nominal damages but denied it as to 

taking liability. Using the 1,060 acres subject to the 

Reversion Order as the relevant property denominator at the 

court’s instruction, the jury found that a taking occurred 

pursuant to both Lucas and Penn Central. The district court 

entered judgment for Bridge and awarded $1 in nominal 

damages.

Following the entry of judgment, the State renewed its 

JMOL motion and alternatively requested a new trial using 

3,000 acres as the property denominator. The parties crossappealed the judgment during the pendency of the renewed 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 19

motion, and the appeals became effective upon the district 

court’s denial of that motion. The State timely appealed the 

denial.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction over the appeals from the final 

judgment pursuant to 28 U.S.C. § 1291. We also have 

jurisdiction over the appeal from the previously nonfinal 

orders that have merged with the final judgment, Hall v. City 

of Los Angeles, 697 F.3d 1059, 1070–71 (9th Cir. 2012), and 

over the denial of the renewed JMOL motion, Wadler v. BioRad Labs., Inc., 916 F.3d 1176, 1185 (9th Cir. 2019).

We review de novo the denial of a renewed JMOL 

motion. Reese v. County of Sacramento, 888 F.3d 1030, 

1036 (9th Cir. 2018). “‘[W]hen reviewing a motion for 

judgment as a matter of law, we apply the law as it should 

be, rather than the law as it was read to the jury,’ even if the 

party did not object to the jury instructions.” Fisher v. City 

of San Jose, 558 F.3d 1069, 1074 (9th Cir. 2009) (en banc) 

(alteration in original) (quoting Pincay v. Andrews, 238 F.3d 

1106, 1109 n.4 (9th Cir. 2001)). A renewed JMOL motion 

“is properly granted only if the evidence, construed in the 

light most favorable to the nonmoving party, permits only 

one reasonable conclusion, and that conclusion is contrary to 

the jury’s verdict.” Castro v. County of Los Angeles, 833 

F.3d 1060, 1066 (9th Cir. 2016) (en banc) (internal 

quotations and citation omitted). “A jury’s verdict must be 

upheld if it is supported by . . . evidence adequate to support 

the jury’s conclusion, even if it is also possible to draw a 

contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 

(9th Cir. 2002).

We review de novo the dismissal of a claim pursuant to 

Federal Rule of Civil Procedure 12(b)(6), United States ex 
20 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

rel. Anita Silingo v. WellPoint, Inc., 904 F.3d 667, 676 (9th 

Cir. 2018), as well as the district court’s issue preclusion 

ruling, Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 

(9th Cir. 2016) (citation omitted).

ANALYSIS

I. The State’s Renewed JMOL Motion on Bridge’s 

Taking Claims

Our core focus in this appeal is the district court’s denial 

of the State’s renewed JMOL motion on Bridge’s Lucas and 

Penn Central taking challenges to the reversion pursuant to 

the Fifth Amendment’s Takings Clause.5 As we explain, as 

matter of law, Bridge’s evidence failed to establish a taking 

pursuant to either. Accordingly, it is unnecessary for us to 

consider the other taking issues that the parties raise on 

appeal.

A. The Fifth Amendment Regulatory Takings 

Framework

“The Takings Clause of the Fifth Amendment states that 

‘private property [shall not] be taken for public use, without 

5 Bridge also asserted takings claims pursuant to the Hawaii 

Constitution, which provides that “[p]rivate property shall not be taken 

or damaged for public use without just compensation.” Haw. Const. art. 

1, § 20. The Hawaii Supreme Court has endorsed federal regulatory 

takings jurisprudence in determining whether government action is a 

taking in violation of the Hawaii Constitution. Leone v. County of Maui, 

404 P.3d 1257, 1270–71 (Haw. 2017) (acknowledging the Lucas and 

Penn Central tests). Because Bridge raises no distinct and separate 

arguments regarding its state law takings claims and given the Hawaii 

Supreme Court’s reliance on the federal regulatory takings framework, 

our Lucas and Penn Central analyses apply equally to Bridge’s state law 

takings claims.
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 21

just compensation.” Knick v. Twp. of Scott, 139 S. Ct. 2162, 

2167 (2019) (alterations in original). By its terms, the clause 

“does not prohibit the taking of private property,” but instead 

requires “compensation in the event of [an] otherwise proper 

interference amounting to a taking.” First English 

Evangelical Lutheran Church of Glendale v. County of Los 

Angeles, 482 U.S. 304, 314, 315 (1987). A classic taking 

occurs when the “government directly appropriates private 

property or ousts the owner from his domain.” Lingle v. 

Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005).

Beyond a classic taking, the Supreme Court has 

recognized that “if regulation goes too far it will be 

recognized as a taking.” Pa. Coal Co. v. Mahon, 260 U.S. 

393, 415 (1922). There are three types of regulatory action 

the Court has recognized, “each of which ‘aims to identify 

regulatory actions that are functionally equivalent to the 

classic taking.’” Cedar Point Nursery v. Shiroma, 923 F.3d 

524, 530–31 (9th Cir. 2019) (quoting Lingle, 544 U.S. at 

539). Two types of regulatory actions—Loretto and Lucas

takings—are per se takings.6 Id. at 531. Penn Central 

takings are the third type of regulatory taking. Id.

Generally, courts determine whether a regulatory action 

is functionally equivalent to the classic taking using 

“essentially ad hoc, factual inquiries, designed to allow 

careful examination and weighing of all the relevant 

circumstances.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe 

6 A Loretto taking occurs “where government requires an owner to 

suffer a permanent physical invasion of her property.” Lingle, 544 U.S. 

at 538 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 

419 (1982)). This “relatively narrow” per se rule requires the 

government to provide compensation, however minor the physical 

invasion. Id. Bridge’s land did not suffer a permanent physical invasion,

and thus Loretto does not apply.
22 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

Reg’l Planning Agency, 535 U.S. 302, 322 (2002) (citations 

and internal quotation marks omitted). These inquiries are 

set forth in the three Penn Central factors: (1) “[t]he 

economic impact of the regulation on the claimant,” (2) “the 

extent to which the regulation has interfered with distinct 

investment-backed expectations,” and (3) “the character of 

the governmental action.” Penn Central, 438 U.S. at 124.

Certain regulatory actions, however, are treated 

categorically as a taking without the necessity of the Penn 

Central inquiry. The Lucas rule “applies to regulations that 

completely deprive an owner of ‘all economically beneficial 

us[e]’ of her property.” Lingle, 544 U.S. at 538 (alteration 

in original) (quoting Lucas, 505 U.S. at 1019). Government 

regulations that constitute such a taking are typically those 

that require land to be left substantially in its natural state. 

Lucas, 505 U.S. at 1018. This is a “relatively narrow” and 

relatively rare taking category, Lingle, 544 U.S. at 538, 

confined to the “extraordinary circumstance when no

productive or economically beneficial use of land is 

permitted,” Lucas, 505 U.S. at 1017 (emphasis in original).7 

Compensation is required in such a case unless the 

government can show that underlying principles of state 

property or nuisance law would have led to the same 

outcome as the challenged regulation. See Tahoe-Sierra, 

535 U.S. at 330; Lucas, 505 U.S. at 1029.

Here, the jury made dual findings that there was an 

unconstitutional taking of Bridge’s property pursuant to both 

7 One review of some 1,700 taking cases in state and federal courts 

decided over 25 years identified only 27 cases in which a landowner 

successfully brought a Lucas claim, i.e. 1.6%. See Carol N. Brown & 

Dwight H. Merriam, On the Twenty-Fifth Anniversary of Lucas: Making 

or Breaking the Takings Claim, 102 IOWA L. REV. 1847, 1849–50

(2017).
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 23

Lucas and Penn Central. The district court determined that 

either finding independently supported the verdict.

We underscore at the outset that when “a regulation 

‘denies all economically beneficial or productive use of 

land,’ the multi-factor analysis established in Penn Central

is not applied” because Lucas supplies the relevant rule. 

Esplanade Props., LLC v. City of Seattle, 307 F.3d 978, 984 

(9th Cir. 2002) (quoting Lucas, 505 U.S. at 1027)). When 

“a regulation places limitations on land that fall short of 

eliminating all economically beneficial use, a taking 

nonetheless may have occurred, depending on” the Penn 

Central framework. Palazzolo v. Rhode Island, 533 U.S. 

606, 617 (2001) (citing Penn Central, 438 U.S. at 124). 

Thus, if the jury could find that the reversion deprived 

Bridge of all economically beneficial uses of the 1,060 acres, 

then Penn Central was inapplicable. Only if the reversion 

fell short of a total taking was application of Penn Central

necessary. We apply this approach in considering the State’s 

arguments.

B. Lucas Taking

Although the State raises several challenges to the jury’s 

Lucas finding, the State’s core challenges to that finding are 

that the land retained substantial residual value in its 

agricultural use classification and that this classification still 

allowed Bridge to use the land in economically beneficial 

ways. We agree and thus decline to reach the State’s 

alternative challenges to the jury’s Lucas finding.

We recognize that shortly after the Supreme Court 

announced the Lucas rule, we remarked that “the term 

‘economically viable use’ has yet to be defined with much 

precision.” Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 

616 (9th Cir. 1993). Acknowledging the lack of precision in 
24 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

this concept, we stated that “the value of the subject 

property” is “relevant” to the Lucas inquiry, but we rejected 

“focusing solely on property values.” Del Monte Dunes at 

Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1433 (9th 

Cir. 1996), aff’d, 526 U.S. 687 (1999). Pointing to this 

passage in Del Monte Dunes, Bridge urges us to reject the 

State’s arguments regarding the role of value in the Lucas

context.

Subsequent developments in the Supreme Court’s 

takings decisions, however, lead to three observations that 

guide our resolution of the parties’ arguments here. First, 

the Court has made clear that “[i]n the Lucas context, . . . the 

complete elimination of a property’s value is the 

determinative factor.” Lingle, 544 U.S. at 539 (emphasis 

added). As the Court has underscored, “the categorical rule 

in Lucas was carved out for the ‘extraordinary case’ in which 

a regulation permanently deprives property of all value.” 

Tahoe-Sierra, 535 U.S. at 332. “Anything less than a 

‘complete elimination of value,’ or a ‘total loss’ . . . would 

require the kind of analysis applied in Penn Central.” Id. at 

330 (quoting Lucas, 505 U.S. at 1019 n.8). Second, although 

value is determinative, use is still relevant. See Murr v. 

Wisconsin, 137 S. Ct. 1933, 1949 (2017) (concluding that the 

challenged regulations did not deprive the landowners of all 

economically beneficial use because “[t]hey can use the 

property for residential purposes” and “[t]he property has not 

lost all economic value”). Finally, the Court has clarified 

that a token interest will not defeat a Lucas claim. See 

Palazzolo, 533 U.S. at 631 (“Assuming a taking is otherwise 

established, a State may not evade the duty to compensate 

on the premise that the landowner is left with a token 

interest.”). Guided by these observations, we conclude that 

Bridge’s evidence did not satisfy Lucas.
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 25

1. The Land Retained Substantial Economic 

Value

We turn first to the land’s value. Bridge relied on the 

expert testimony of Steven Chee to opine on the fair market 

value of the 1,060 acres in the urban and agricultural land 

use classifications before and after reversion. Chee 

expressly assumed that the 2009 Voice Vote on April 30, 

2009 reverted the land. Although this assumption is 

demonstrably wrong, this testimony is the only valuation 

evidence in the record. We therefore address the argument 

as Bridge frames it.

Chee appraised the fair market value of the 1,060 acres 

by determining the highest and best use of the land in each 

classification, a metric “shaped by the competitive forces 

within the market where the property is located.” First, Chee 

opined that the land had a value of $40 million on April 29, 

2009 in an urban classification based on land banking until 

market conditions improved given the significant off-site 

work necessary before the land could be developed and the 

ongoing impacts of the Great Recession. Second, Chee 

opined that the land had a value of $6.36 million on April 

30, 2009 in an agricultural classification. Although Chee did 

not presume that reclassification would be obtained, the 

agricultural use valuation accounted for land banking while 

simultaneously attempting to regain the former urban 

classification.8 The difference reflects an 83.4 % diminution 

in value.

8 We understand Chee’s evidence to account for a realistic 

probability that the urban classification would be regained based on 

Chee’s trial testimony that an appraiser will consider the possibility of 

rezoning if it “looks highly realistic.” In actuality, we also know that 
26 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

The State contends that this evidence shows that the land 

retained substantial residual value in an agricultural use 

classification and that any diminution in value was less than 

the land’s total value. We agree. Absent more, there is no 

Lucas liability for this less than total deprivation of value. 

See Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 

(Fed. Cir. 2004) (concluding that a 92% loss of value in one 

part of the land and a 78% loss in another part “is manifestly 

insufficient” under Lucas); Cienega Gardens v. United 

States, 331 F.3d 1319, 1344 (Fed. Cir. 2003) (concluding

that Lucas requires a loss of “100% of a property interest’s 

value”); Cooley v. United States, 324 F.3d 1297, 1305 (Fed. 

Cir. 2003) (“Contrary to the trial court’s holding, the record 

shows that the 1993 denial apparently destroyed less than all 

of Cooley’s property’s value, which constitutes a noncategorical taking. The categorical takings directives of 

Lucas do not apply.”).

In rejecting the State’s arguments, the district court 

reasoned that value was relevant to but not dispositive of the 

Lucas inquiry by relying on our discussion on value versus 

use in Del Monte Dunes. This was error because, as we have 

explained, the Supreme Court’s precedents underscore that 

value is determinative. See Lingle, 544 U.S. at 539; TahoeSierra, 535 U.S. at 330. We have stated as much in a 

decision that the district court acknowledged but interpreted 

as irrelevant. See Horne v. U.S. Dep’t of Agric., 750 F.3d 

1128, 1141 n.17 (9th Cir. 2014) (“Lucas plainly applies only 

when the owner is deprived of all economic benefit of the 

property. If the property retains any residual value after the 

regulation’s application, Penn Central applies.” (citation 

Bridge did regain the conditional urban classification roughly a year after 

the reversion because of the circuit court’s judgment.
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 27

omitted) (emphasis in original)), overruled on other grounds 

by Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015).

The district court also wrote off the substantial residual 

value that Bridge’s evidence found in the land’s agricultural 

use classification by pointing to our observation in Del 

Monte Dunes that if “no competitive market exists for the 

property without the possibility of development, a taking 

may have occurred.” 95 F.3d at 1433. The district court read 

this passage to mean that the jury could find that Lucas 

applied here if no competitive market existed for the land 

without a change in the regulation. Bridge reprises this 

reasoning here.

Del Monte Dunes does not control here. There, we 

determined that “the mere fact that there is one willing buyer 

of the subject property, especially where that buyer is the 

government, does not, as a matter of law, defeat a taking 

claim” when the “government action relegates permissible 

uses of property to those consistent with leaving the property 

in its natural state (e.g., nature preserve or public space).” Id. 

at 1433. Thus, the fact that the government purchased the 

land subject to the challenged regulation that the government 

put in place did not defeat a Lucas theory. Unlike in Del 

Monte Dunes, the Commission neither attempted to buy the 

subject property, nor was Bridge captive to a single buyer 

exercising its regulatory power. Moreover, the Commission 

thought that reversion would encourage Bridge to sell the 

property so that a new developer could make a new proposal, 

suggesting that Bridge could have sold the land in a 

competitive market with a possibility of a regulatory change.

In the end, the relevant inquiry for us is whether the 

land’s residual value reflected a token interest or was 

attributable to noneconomic use. See Palazzolo, 533 U.S. at 

631 (concluding that a 93% loss in value was insufficient for 
28 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

Lucas because the value was attributable to economic use, 

specifically residential use); Lost Tree Vill. Corp. v. United 

States, 787 F.3d 1111, 1115–17 (Fed. Cir. 2015) (concluding 

that the Lucas rule applied to a 99.4% deprivation because 

the residual value was attributable to noneconomic uses). 

We do not think either situation applies here.

The land’s $6.36 million value in an agricultural use 

classification was neither de minimis, nor did the value 

derive from noneconomic uses. Bridge’s expert valued the 

land in a competitive market using pricing for similarly 

situated properties, and expressly accounted for the 

possibility of regaining the urban use classification. Lucas 

does not apply when “substantial present value” stems from 

“future use” of the land. See Tahoe-Sierra Pres. Council, 

Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 781 n.26 

(9th Cir. 2000), overruled on other grounds by Gonzalez v. 

Arizona, 677 F.3d 383 (9th Cir. 2012). Thus, the land’s 

value in the agricultural use classification precludes a Lucas 

finding here.

2. The Reversion Did Not Deprive Bridge of All 

Economically Viable Uses of the Land

As a secondary matter, the permissible uses of land 

classified as agricultural reinforce our conclusion that the 

reversion did not completely deprive Bridge of all 

economically viable uses of the 1,060 acres as a matter of 

law. “[T]he existence of permissible uses determines 

whether a development restriction denies a property owner 

economically viable use of his property.” Del Monte Dunes, 

95 F.3d at 1432 (emphasis added); Outdoor Systems, 997 

F.2d at 616. “[W]here an owner is denied only some 

economically viable uses, a taking still may have occurred” 

pursuant to the Penn Central analysis, but not pursuant to the 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 29

Lucas rule. Del Monte Dunes, 95 F.3d at 1432 (emphasis 

added).

Hawaii law permits an array of uses for land classified as 

agricultural. See Haw. Rev. Stat. § 205-2(d)(1)−(16).9 In 

addition, a landowner may obtain a permit for “certain 

unusual and reasonable uses within agricultural . . . districts 

other than those for which the district is classified.” Id. 

§ 205-6(a). There are no express limitations on such 

specially permitted uses.10 Against this statutory backdrop, 

we do not see how this case is like Lucas. The mere 

reclassification of the 1,060 acres from urban use to an 

agricultural use did not prohibit all development, nor did it 

9 These uses include: (1) crop cultivation activities and uses; (2) 

farming activities or uses related to animal husbandry and game and fish 

propagation; (3) aquaculture (i.e., the production of aquatic plant and 

animal life within ponds); (4) wind-generated energy production for 

public, private, and commercial use; (5) biofuel production for public, 

private, and commercial use; (6) solar energy facilities; (7) bona fide 

agricultural activities and uses that support such activities, including 

accessory buildings; (8) wind machines and wind farms; (9) small-scale 

meteorological, air quality, noise, and other scientific and environmental 

data collection; (10) agricultural parks; (11) agricultural tourism 

conducted on a working farm, or a farming operation; (12) agricultural 

tourism activities; (13) open area recreational facilities, (14) geothermal 

resources exploration, (15) agricultural-based commercial operations 

registered in Hawaii; and (16) hydroelectric facilities. See Haw. Rev. 

Stat. § 205-2(d).

10 Trial testimony showed that prior examples of specially permitted 

uses in an agricultural district included: rock quarrying operations; 

cinder and sand mining facilities; concrete batching plants; construction 

waste facilities; landfills; public and private sewage treatment plants; 

gardens and zoos; schools (pre-kindergarten to college); memorial parks, 

including crematoria, commercial facilities, including post offices and 

gas stations; private storage facilities; construction yards; maintenance 

facilities; and telecommunications facilities and structures.
30 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

require leaving the land in an idle state. See Lucas, 505 U.S. 

at 1008.

Although Bridge offered evidence suggesting that many 

of the statutorily permitted uses would not have been 

economically feasible, Bridge did not address all of the 

statute’s permitted uses or account for any of the uses for 

which the Commission had granted special permits in the 

past, such as a sewage treatment plant or rock quarrying. 

Some of the specially permitted uses may have been 

especially suitable for this land. Bridge intended to place a 

sewage treatment plant on the adjacent 2,000 acres of 

agriculturally zoned land. Bridge’s own witnesses also 

recognized that the land was “good for growing rocks.” 

Based on the evidence that Bridge presented, we do not think 

that the jury could have reasonably found that the reversion 

deprived Bridge of all economically feasible uses of the 

land.

Bridge otherwise draws our attention to the 

Commission’s findings in the 1989 and 1991 Orders that the 

soils were rated poorly and were not adequate for grazing to 

suggest that there were no viable uses in an agricultural use 

zone. By definition, however, “[a]gricultural districts 

include areas that are not used for, or that are not suited to, 

agricultural and ancillary activities by reason of topography, 

soils, and other related characteristics.” Haw. Rev. Stat. 

§ 205-2(d). Thus, the Commission’s findings are simply not 

evidence that the land lacked economically viable uses in an 

agricultural classification.

Ultimately, we think that the notion underlying Bridge’s 

Lucas theory is that the inability to pursue a particular 

development and to obtain its value was a total taking. This 

view is unsupported by the law. See Palm Beach Isles 

Assocs. v. United States, 231 F.3d 1354, 1364 (Fed. Cir. 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 31

2000) (order) (“[M]ost land use restrictions do not deny the 

owner of the regulated property all economically viable uses 

of it.”); Hoehne v. County of San Benito, 870 F.2d 529, 

532−33 (9th Cir. 1989) (“A government entity is not 

required to permit a landowner to develop property to the 

full extent it may desire. Denial of the intensive 

development desired by a landowner does not preclude less 

intensive, but still valuable development.”). Accordingly, 

we conclude that the State was entitled to judgment as a 

matter of law on Bridge’s Lucas theory, and we turn to the 

Penn Central analysis.

C. Penn Central Taking

Penn Central requires that we consider: (1) “[t]he 

economic impact of the regulation on the claimant,” (2) “the 

extent to which the regulation has interfered with distinct 

investment-backed expectations,” and (3) “the character of 

the governmental action.” 438 U.S. at 124. Our 

consideration of these factors aims “to determine whether a 

regulatory action is functionally equivalent to the classic 

taking.” Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 

(9th Cir. 2010) (en banc) (internal quotation marks omitted). 

The first and second Penn Central factors are the primary 

factors. Lingle, 544 U.S. at 538–39. “The outcome [of this 

inquiry] . . . depends largely upon the particular 

circumstances [in the] case” at hand. Palazzolo, 533 U.S. at 

633 (O’Connor, J., concurring) (quoting Penn Central, 438 

U.S. at 124) (internal quotation marks omitted). When we 

apply the Penn Central factors to the trial evidence, we 

conclude that the jury could not reasonably find for Bridge.

1. The Reversion Order’s Economic Impact

Our first consideration is the challenged regulation’s 

economic impact on the property owner. Lingle, 544 U.S. at 
32 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

528. “[W]e ‘compare the value that has been taken from the 

property with the value that remains in the property.’” 

Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 

450 (9th Cir. 2018) (quoting Keystone Bituminous Coal 

Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)), cert.

denied. 139 S. Ct. 917 (2019). Although there is “no litmus 

test,” id. at 451, our value comparison again aims “to 

identify regulatory actions that are functionally equivalent to 

the classic taking in which government directly appropriates 

private property or ousts the owners from his domain,” 

Lingle, 544 U.S. at 539.

Bridge attempted to show the reversion’s economic 

impact by relying on Chee’s valuation testimony and on 

testimony regarding the disruption to the sale agreements 

between Bridge and DW. We address each in turn.

a. The Valuation Opinion

As we have explained, Chee calculated the fair market 

value of the land using the day of the 2009 Voice Vote as the 

relevant point at which the land reverted. Chee calculated 

the land’s value as $40 million on the day before the vote 

and as $6.36 million on the day of the vote. The parties 

agree, uncritically, that Chee’s opinion shows that the land 

suffered an 83.4% diminution in fair market value. On this 

account, the reversion would have resulted in a loss of $33.6 

million in the land’s value. We conclude, however, that, as 

a matter of law, Chee’s calculation suffers from a number of 

defects for the purposes of Bridge’s taking claim.

First, Chee’s valuation opinion did not properly ascertain 

economic impact for the purposes of Bridge’s taking claim 

because it assumed that the April 30, 2009 Voice Vote 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 33

reverted the land.11 We have already explained that it is not 

proper to measure economic impact based on a “hypothetical 

economic result” that assumes a state of affairs that did not

exist. See MHC Fin. Ltd. P’ship v. City of San Rafael, 714 

F.3d 1118, 1127 (9th Cir. 2013) (rejecting the district court’s 

comparison of the effect of a 1999 rent control ordinance 

with a “hypothetical economic result assuming that there 

was no rent control ordinance in effect at all”). The 

reversion did not occur until some two years after the 2009 

Voice Vote and thus the vote could not be the proper 

reference point.

Second, the vote’s effect on the land’s fair market value 

during the ongoing OSC proceedings is not evidence of a 

taking. We understand that Bridge could account for what it 

contends cast a “dark cloud” over the project by using the 

vote as the reference point for its valuation calculation. 

Nevertheless, “[m]ere fluctuations in value during the 

process of governmental decisionmaking, absent 

extraordinary delay, are incidents of ownership. They 

cannot be considered as a taking in the constitutional sense.” 

Tahoe-Sierra, 535 U.S. at 332 (quoting Agins v. City of 

Tiburon, 447 U.S. 255, 263 n.9 (1980)); First English, 482 

U.S. at 320 (same). Chee’s valuation evidence falters for 

this reason as well.

11 We observe that it appears that Chee’s calculation of the land’s 

value prior to voice vote failed to account for Bridge’s November 2010 

deadline to complete the 385 affordable housing units. Chee calculated 

the land’s urban value as $40 million based on the “highest and best use” 

of “‘land banking’ the property until overall market conditions 

improved,” specifically waiting to gauge “the full fallout of the Great 

Recession.” Thus, Chee’s highest and best use valuation of the land in 

its urban classification also appears to have inflated the land’s value.
34 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

Third, even if we assume that Chee properly calculated 

the land’s value, the asserted 83.4% diminution in value 

substantially overstates the relevant diminution in value 

Bridge could have suffered for the purposes of weighing this 

factor. See MHC Fin., 714 F.3d at 1127 (taking issue with 

valuation evidence based on a hypothetical state of affairs 

but nevertheless assuming it could show economic impact). 

“[T]he duration of the restriction is one of the important 

factors that a court must consider in the appraisal of a 

regulatory takings claim.” Tahoe-Sierra, 535 U.S. at 342.

When we account for the reversion’s temporary duration, the 

resulting relevant diminution is much smaller than 83.4%.

We observe that, consistent with the nature of its 

temporary taking claim, Bridge did not attempt to pursue at 

trial damages that would reflect the full 83.4% diminution it 

asserted.12 Instead, Bridge sought damages by taking (1) the 

diminution in the land’s value attributed to the government 

action, (2) multiplied by the time period of the temporary 

taking, and (3) further multiplied by Bridge’s rate of return. 

Using an overstated taking period from the date of the 2009 

Voice Vote to the Hawaii Supreme Court’s November 2014 

decision, Bridge asserted that the relevant time period for its 

12 In a temporary regulatory taking case, just compensation damages 

are modified because “the landowner’s loss takes the form of an injury 

to the property’s potential for producing income or an expected profit,” 

not the loss of the property itself. Wheeler v. City of Pleasant Grove, 

833 F.2d 267, 271 (11th Cir. 1987). In these circumstances, “[t]he 

landowner’s compensable interest . . . is the return on the portion of fair 

market value that is lost as a result of the regulatory restriction. 

Accordingly, the landowner should be awarded the market rate return 

computed over the period of the temporary taking on the difference 

between the property’s fair market value without the regulatory 

restriction and its fair market value with the restriction.” Id. (citing 

Nemmers v. City of Dubuque, 764 F.2d 502, 505 (8th Cir. 1985)).
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 35

damages was 5.68 years. Seeking to apply a 10.12% rate of 

return to the $40 million valuation, Bridge claimed damages 

of $19.54 million. That is a roughly 48% diminution in 

value.

More critically, Bridge’s claimed damages still overstate 

the relevant diminution in value for the purposes of this 

factor. The reversion lasted roughly a year, from the 

Reversion Order’s issuance in April 2011 until the Hawaii 

state circuit court’s judgment vacating the order in June 

2012.13 See DW Aina Le‘a Dev., 339 P.3d at 704. When we 

account for the reversion’s actual one-year duration, 

Bridge’s damages are at most $6.72 million if we use the 

higher 20% rate of return that Bridge hoped to receive on its 

total investment (an issue we discuss in further detail below). 

Bridge’s loss thus amounts to an approximately 16.8% 

diminution in value, a number far lower than the 83.4% 

figure on which it relied at trial. This economic impact 

weighs against the conclusion that the reversion constituted 

a taking. See Colony Cove Props., 888 F.3d at 451 

(concluding that a 24.8% diminution was “far too small to 

establish a regulatory taking”); Laurel Park Cmty., LLC v. 

City of Tumwater, 698 F.3d 1180, 1189 (9th Cir. 2012) 

(finding that a “less than 15%” economic loss with respect 

to one property and no effect on two other properties “does 

not support a takings claim”).

13 Bridge treats the Hawaii Supreme Court’s decision as the decision 

that invalidated the Reversion Order. We know of no principle of Hawaii 

law that would render ineffective the Hawaii circuit court’s judgment 

vacating the Reversion Order. The general rule is that “an appeal does 

not vacate the judgment appealed from.” Solarana v. Indus. Elecs., Inc., 

428 P.2d 411, 417 (Haw. 1967). Thus, the circuit court’s judgment is 

the relevant end point.
36 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

For these reasons, we conclude that the valuation 

evidence, properly understood, weighs strongly against a 

taking pursuant to the first Penn Central factor.

b. The Disrupted Sale Agreements

Bridge also relied on the disruption of the land sale 

agreements between it and DW to show economic impact. 

John Baldwin, the CEO of Bridge Capital and Bridge’s 

parent company as well as Bridge’s manager, testified that 

DW failed to purchase the remaining 1,000 acres for the 

$35.7 million price stated in the February 2009 sale 

agreement because of the vote. Apparently, the vote affected 

DW’s ability to borrow money to finance the purchase. 

Baldwin further testified that DW failed to make any more 

payments to Bridge pursuant to the modified December 2009 

agreement—which retained the same $35.7 million price for

the remaining 1,000 acres—after the OSC’s reinstatement.

There is a fundamental problem with using the claimed 

disruptions to the February 2009 and December 2009 sale 

agreements as evidence of the Reversion Order’s economic 

impact. DW’s contractual default under the February 2009 

agreement after the 2009 Voice Vote occurred some two 

years before the 2011 Reversion Order. DW’s default under 

the modified December 2009 agreement also occurred after 

the OSC’s reinstatement in July 2010, several months before

the Reversion Order’s issuance. The Reversion Order thus 

could not have caused the contractual defaults that pre-dated 

it by several months. See Esplanade Props., 307 F.3d at 984 

(citing Tahoe-Sierra, 216 F.3d at 783 & n.33) (recognizing 

that a regulatory taking plaintiff must establish both 

causation-in-fact and proximate causation). Moreover, the 

record otherwise shows that Bridge’s focus on the 

disruptions to these agreements overstated the reversion’s 

impact on its contractual relationship with DW. After the 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 37

Hawaii Supreme Court’s decision, DW agreed to pay Bridge 

$14 million more than the previously agreed upon $40.7 

million to purchase the land. Thus, the contractual defaults 

during the reversion’s temporary duration do not affect our 

economic impact analysis.

2. The Extent of Any Interference with Any 

Reasonable Investment-Backed Expectations

We must consider next “the extent to which the 

regulation has interfered with distinct investment-backed 

expectations,” Penn Central, 438 U.S. at 124, that Bridge 

had for the 1,060 acres at the time of its acquisition, see

Colony Cove Props, 888 F.3d at 452; Laurel Park Cmty, 698 

F.3d at 1189. Although this factor raises “vexing subsidiary 

questions” about its proper scope and application, Lingle, 

544 U.S. at 539, certain principles guide us.

For one, we must “use ‘an objective analysis to 

determine the reasonable investment-backed expectations of 

the [o]wners.’” Colony Cove Props., 888 F.3d at 452 

(quoting Chancellor Manor v. United States, 331 F.3d 891, 

907 (Fed. Cir. 2003)). Our focus is on interference with 

reasonable expectations. See Concrete Pipe & Prods., 508 

U.S. at 646; Ruckelshaus v. Monsanto Co., 467 U.S. 986, 

1005 (1984). “‘Distinct investment-backed expectations’ 

implies reasonable probability, . . . not starry eyed hope of 

winning the jackpot if the law changes.” Guggenheim, 638 

F.3d at 1120 (quoting Penn Central, 438 U.S. at 124). Thus, 

“unilateral expectation[s]” or “abstract need[s]” cannot form 

the basis of a claim that the government has interfered with 

property rights. Ruckelshaus, 467 U.S. at 1005 (citation 

omitted).

Second, “what is ‘relevant and important in judging 

reasonable expectations’ is ‘the regulatory environment at 
38 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

the time of the acquisition of the property.’” Love Terminal 

Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. 

Cir. 2018) (quoting Commonwealth Edison Co. v. United 

States, 271 F.3d 1327, 1350 n.23 (Fed. Cir. 2001) (en banc)). 

“[T]hose who do business in the regulated field cannot 

object if the legislative scheme is buttressed by subsequent 

amendments to achieve the legislative end[.]” Concrete 

Pipe & Prods., 508 U.S. at 645 (quoting FHA v. The 

Darlington, Inc., 358 U.S. 84, 91 (1958)).

With these principles in mind, we must determine what 

reasonable investment-backed expectations Bridge had and 

to what degree the Reversion Order interfered with them.

The record shows that Baldwin testified that Bridge 

hoped to make annually at least 20% from “the total 

investment,” meaning every dollar put into the property.14 

Even if this hoped-for return was reasonable, the reversion 

could not have meaningfully interfered with it during the 

reversion’s one-year duration. Bridge did not expect any 

profit from its purchase of the property unless and until the 

Commission amended the 1991 Order’s affordable housing 

condition. Bridge also did not expect that an amendment to 

the affordable housing condition would translate into 

immediate profits. Indeed, Bridge represented to the 

Commission that $86 million in initial infrastructure costs 

and over $200 million in total development costs had to be 

spent before the construction and sale of any housing units 

could begin. At the time of the reversion, the project was 

14 The district court denied the State’s JMOL motion in part by 

relying on evidence that Bridge anticipated receiving a 20% return on its 

initial investment. On appeal, Bridge passingly refers to this in the 

factual background of its answering brief to the State’s cross-appeal and 

does not argue it in its Penn Central analysis. Nevertheless, we address 

it here.
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 39

nowhere near this level of investment—indeed only sixteen 

affordable housing units existed—and thus Bridge could 

have had no reasonable expectation of making the 20% 

annual return on the total investment at that time.

The State and Bridge largely focus on whether Bridge 

could have reasonably expected that the Commission would 

amend the 1991 Order’s affordable housing condition 

requiring the construction of 1,000 affordable housing 

units.15 Pointing to our distinction in Guggenheim, 638 F.3d 

at 1120−21, between reasonable expectations and 

speculative possibilities, both sides find support for the 

(un)reasonableness of Bridge’s expectation in the $5.2 

million that Bridge paid for the 1,060 acres. We will assume 

that Bridge reasonably expected an amendment to the 1991 

Order’s affordable housing condition, but we do not see what 

it proves. The Commission did not predicate the Reversion 

Order on a purported failure to build the 1,000 affordable 

housing units that the 1991 Order required prior to 

amendment, but instead on the reclassification conditions 

that Bridge conspicuously ignores.

Bridge further argues that the jury was entitled to find 

that Bridge had a reasonable expectation that the 

Commission would not revert the land to its prior zoning for 

agricultural use once Bridge purchased the property, 

obtained the amendment, and substantially commenced use 

of the land. The substantial commencement of use point 

stems from the Hawaii Supreme Court’s determination that 

DW’s active preparations for the land and completion of 

15 The propriety of the Commission’s affordable housing conditions 

is not at issue in this case. As Bridge avers on appeal, “the ‘challenged 

regulation’ giving rise to Bridge’s takings claim is not the affordable 

housing condition in effect when Bridge purchased the Property.”
40 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

sixteen affordable housing units by March 2010 was 

substantial commencement of use. But again, we do not see 

what this proves. Substantial commencement of use did not 

eliminate the possibility of reversion; it simply changed the 

circumstances pursuant to which the Commission could 

exercise its reversion authority. See DW Aina Le‘a Dev., 339 

P.3d at 714.

What we find dispositive are the conditions of the 1989 

and 1991 Orders requiring the landowner to substantially 

comply with representations made to obtain reclassification. 

The 1991 Order made clear that the Commission might issue 

an OSC why the land should not revert for failure to 

substantially comply with representations made to obtain 

reclassification. Hawaii law expressly authorized the 

Commission to impose this condition, and such conditions 

ran with title to the land. Haw. Rev. Stat. § 205-4(g). 

Critically, the substantial compliance condition turned on 

the landowner’s own representations to the Commission.

Bridge expressly committed to build 385 affordable 

housing units as a part of the amendment to the order 

governing the land’s conditional urban use classification. 

Based on Bridge’s representations to the Commission, the 

2005 Order required Bridge to build these units by 

November 2010. At no point in arguments before us does 

Bridge acknowledge this deadline, let alone Bridge’s and 

DW’s repeated representations to the Commission as part of 

seeking the OSC’s rescission that they would complete the 

385 affordable housing units.

The operative conditions in place at the time of the OSC 

and the Reversion Order, and Bridge’s failure to meet them, 

dispel the notion that Bridge could reasonably expect that the 

Commission would not enforce the conditions. See MHC 

Fin., 714 F.3d at 1127–28 (finding that plaintiff could not 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 41

satisfy this factor in the context of challenging a 1999 rent 

control ordinance because the plaintiff “had even less reason 

to expect that the rent control regime would disappear 

altogether” given a prior 1993 rent control ordinance in 

effect when plaintiff bought its property). The Commission 

properly issued the OSC based on the suspicion that Bridge 

would not meet the conditions. See DW Aina Le‘a, Dev., 

339 P.3d at 713 (“The [Commission] did not err in issuing 

the OSC. Bridge and DW do not contend otherwise.” 

(citation omitted)). And, in fact, Bridge did not complete the 

385 affordable housing units by the deadline to do so, which 

lapsed several months before the Reversion Order’s 

issuance. Thus, we do not see how the Reversion Order 

interfered with any reasonable expectations that Bridge 

could have formed regarding enforcement or reversion. 

Accordingly, we conclude that, as a matter of law, this factor 

weighs strongly against finding a taking.

3. The Character of the Government’s Action

Finally, we consider the Reversion Order’s character. 

“[T]he character of the governmental action—for instance 

whether it amounts to a physical invasion or instead merely 

affects property interests through some public program 

adjusting the benefits and burdens of economic life to 

promote the common good—may be relevant in discerning 

whether a taking has occurred.” Lingle, 544 U.S. at 539 

(internal quotation marks omitted). The government 

generally cannot “forc[e] some people alone to bear public 

burdens which, in all fairness and justice, should be borne by 

the public as a whole.” Id. at 537 (quoting Armstrong v. 

United States, 364 U.S. 40, 49 (1960)). Even if this factor 

weighs in favor of finding a taking, this factor is not alone a 

sufficient basis to find that a taking occurred. See Laurel 

Park Cmty., 698 F.3d at 1191.
42 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

The district court concluded that Bridge’s evidence 

provided the jury with an ample basis to find for Bridge on 

this factor. The court reasoned that the Reversion Order’s 

effect was concentrated because it directly affected the 

owners of the 1,060 acres. The court also reasoned that 

credible testimony showed that the Commission intended to 

cause Bridge to sell the property. In addition, the court 

observed that the “decision to revert the Property’s 

classification was the first time in the [Commission’s] 50-

year history that it had taken such action,” and that the 

Hawaii Supreme Court ultimately invalidated the reversion. 

Much of this evidence was insufficient to establish that this 

factor weighed in Bridge’s favor.

For one, we recognize that government action that 

singles out a landowner from similarly situated landowners 

raises the specter of a taking. See Lingle, 544 U.S. at 542–

44. The concentrated effect of the reversion here, however, 

was reflective of the confines of a generally applicable 

Hawaii law land use reclassification procedure. See Haw. 

Rev. Stat. § 205-4(a) (permitting a landowner to petition). 

We cannot find in this generally applicable scheme that this 

factor weighed in Bridge’s favor.

Second, the Hawaii Supreme Court’s invalidation of the 

reversion as a matter of Hawaii statutory procedural

requirements does not carry the constitutional significance 

that either Bridge or the district court ascribed to it. The 

reclassification history is critical to the reversion challenged 

here. See Buckles v. King County, 191 F.3d 1127, 1139 (9th 

Cir. 1999) (observing that a taking claim must be considered 

“‘in light of the context and . . . history’ of the land use 

decisions related to [the] property.” (ellipsis in original) 

(quoting City of Monterey v. Del Monte Dunes at Monterey, 

Ltd., 526 U.S. 687, 721 (1999))).
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 43

As the Hawaii Supreme Court observed when it rejected 

Bridge’s assertion that the Commission violated Bridge’s 

substantive due process rights, the “reversion was not 

‘clearly arbitrary and unreasonable,’ given the project’s long 

history, the various representations made to the 

[Commission], and the petitioners’ failure to meet 

deadlines.” DW Aina Le‘a Dev., 339 P.3d at 689, 717. The 

court otherwise acknowledged that, despite their repeated 

assurances to the Commission that they would complete the 

385 affordable housing units by November 2010, “Bridge 

and DW did not satisfy the affordable housing condition, and 

did not comply with numerous other representations made to 

the [Commission].” Id. at 717. The Hawaii Supreme 

Court’s rejection of Bridge’s equal protection challenge 

echoed this reasoning. Id. at 718. The same underlying 

history blunts the force of Bridge’s assertion that the 

reversion’s character established a taking.

4. The Balance of the Penn Central Factors

Although we construe the evidence in the light most 

favorable to the jury’s verdict, we conclude that no 

reasonable jury could find that Bridge’s evidence satisfied 

the Penn Central test. Even if we assume that the character 

of the government’s action weighs in favor of finding a 

taking, the first and second factors weigh decisively against 

such a finding. Because Bridge’s own evidence established 

a diminution in value that is proportionately too small and 

because the reversion did not interfere with Bridge’s 

reasonable investment-backed expectations for the land, no 

reasonable jury could conclude that the reversion effected a 

taking pursuant to the Penn Central analysis.
44 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

D. The Outcome of the Taking Liability Analysis

Our analysis of Bridge’s taking theories requires us to 

reverse the district court’s denial of the State’s renewed 

JMOL motion. Bridge’s evidence could not establish that a 

taking occurred pursuant to either Lucas or Penn Central. 

Thus, the district court should have granted the State’s 

motion. We vacate the judgment for Bridge and the nominal 

damages award and remand with instructions for the district 

court to enter judgment for the State. As a consequence of 

this determination, we need not address any other taking 

issues the parties raise on appeal.

II. The Dismissal of Bridge’s Equal Protection Claim

Next, we must determine whether the Hawaii Supreme 

Court’s decision in Bridge’s agency appeal barred Bridge’s 

equal protection claim in this case. Hawaii law governs 

whether we afford preclusive effect to the Hawaii Supreme 

Court’s decision. See Hiser v. Franklin, 94 F.3d 1287, 1290 

(9th Cir. 1996) (“[A] federal court must give to a state-court 

judgment the same preclusive effect as would be given that 

judgment under the law of the state in which the judgment 

was rendered.” (quoting Migra v. Warren City Sch. Dist. Bd. 

of Educ. 465 U.S. 75, 81 (1984))). Thus, if Hawaii law 

precludes Bridge from litigating the equal protection claim 

in state court, then Bridge cannot pursue the same claim 

here. Caldeira v. County of Kauai, 866 F.2d 1175, 1178 (9th 

Cir. 1989).

Pursuant to Hawaii law, the “judgment of a court of 

competent jurisdiction is a bar to a new action in another 

court between the same parties or their privies concerning 

the same subject matter.” Santos v. State Dep’t of Transp., 

646 P.2d 962, 965 (Haw. 1982) (per curiam). A judgment 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 45

has preclusive effect pursuant to the doctrine of issue 

preclusion if four requirements are met:

(1) the issue decided in the prior adjudication 

is identical to the one presented in the action 

in question; (2) there is a final judgment on 

the merits; (3) the issue decided in the prior 

adjudication was essential to the final 

judgment; and (4) the party against whom 

[issue preclusion] is asserted was a party or 

in privity with a party to the prior 

adjudication.

Bremer v. Weeks, 85 P.3d 150, 161 (Haw. 2004) (alteration 

in original); see also Dorrance v. Lee, 976 P.2d 904, 909 

(Haw. 1999).

The district court determined that all requirements were 

met. Bridge disputes the first and second requirements and 

further argues that it did not have a full and fair opportunity 

to litigate its equal protection challenge in the agency appeal. 

We reject each argument in turn.

A. Identical Issues

We can find no material difference between the equal 

protection issue Bridge raised in the agency appeal and the 

one raised in this suit. In the agency appeal, Bridge asserted 

that the Commission violated its equal protection rights 

because the Commission did not treat other developers the 

same way it treated Bridge. In its complaint here, Bridge 

alleged that the Commission lacked a rational basis to treat 

Bridge differently than it treated other developers. These are 

undoubtedly the same issue. Bridge’s further contention that 

the Hawaii Supreme Court decided only whether the 

Commission had a rational basis to enforce the 
46 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

reclassification conditions ignores that the court determined 

that any differential treatment did not lack a rational basis. 

See DW Aina Le‘a Dev., 339 P.3d at 717–18.

Furthermore, we disagree with Bridge that Hawaii law 

requires the availability of identical remedies in both 

proceedings for an earlier judgment to have preclusive 

effect. In Citizens for the Protection of the North Kohala 

Coastline v. County of Hawai‘i, 979 P.2d 1120 (Haw. 1999), 

the Hawaii Supreme Court decided that issue preclusion did 

not bar the suit there because different standards governed 

the issue of standing to challenge an agency action pursuant 

to different Hawaii statutory provisions. See Tax Found. of 

Haw. v. State, 439 P.3d 127, 149 (Haw. 2019) (“[I]n 

Citizens, we pointed out the difference between standing 

requirements for HRS § 91-14 agency appeals and HRS 

§ 632-1 declaratory judgment actions[.]”). The court 

observed that the statutory provisions provided different 

forms of relief to bolster the conclusion that issue preclusion 

did not bar the later suit, not to fashion a new identical 

remedies requirement for Hawaii issue preclusion law. See

Citizens for the Protection of the North Kohala Coastline, 

979 P.2d at 1128 (citing Pele Def. Fund v. Puna Geothermal 

Venture, 881 P.2d 1210, 1216 n.13 (Haw. 1994) (further 

explaining that in a § 91-14 agency appeal, “the court only 

has power to grant relief in accordance with HRS 91-

14(g)”)). Thus, we reject Bridge’s challenge to the identical 

issue requirement.

B. Final Judgment on the Merits

We also reject Bridge’s contention that the Hawaii 

Supreme Court’s decision was not a final judgment on the 

merits. Insofar as the decision concerned Bridge’s federal 

equal protection rights, the decision became final when the 

time expired for Bridge to seek review by the United States 
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 47

Supreme Court. See E. Sav. Bank, FSB v. Esteban, 296 P.3d 

1062, 1068 (Haw. 2013); see also 28 U.S.C. § 2101 (setting 

90-day time period within which to file a writ of certiorari 

with the United States Supreme Court). We are not aware of 

Bridge ever pursuing any such appeal.

Contrary to Bridge’s view, the Hawaii Supreme Court’s 

remand for further proceedings consistent with its opinion 

does not render the judgment nonfinal. The Hawaii Supreme 

Court expressly vacated the circuit court’s judgment on the 

issue of equal protection, and remanded for the circuit court 

to effectuate that vacatur. That remand could not have 

resulted in a different resolution of Bridge’s equal protection 

challenge because no issue of law or fact regarding that 

challenge remained unresolved. See Robinson v. Ariyoshi, 

658 P.2d 287, 297 (Haw. 1982). Moreover, Bridge has never 

identified any further agency appeal proceedings in the more 

than five years since the Hawaii Supreme Court’s judgment. 

Thus, the court’s decision was a final judgment on the 

merits.

C. Full and Fair Opportunity to Litigate

As a final matter, we consider whether Bridge lacked a 

full and fair opportunity to litigate its equal protection 

challenge in the agency appeal. Federal courts will not 

afford preclusive effect to a prior state court judgment if the

party lacked a full and fair opportunity to litigate the issue 

on the merits. See Allen v. McCurry, 449 U.S. 90, 101 

(1980); Ross v. Alaska, 189 F.3d 1107, 1112–13 (9th Cir. 

1999).16 “[N]o single model of procedural fairness, let alone 

16 This parallels a requirement of Hawaii issue preclusion law, 

pursuant to which the plaintiff must have had a full and fair opportunity 
48 BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N

a particular form of procedure, is dictated by the Due Process 

Clause.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 483 

(1982). Instead, “‘state proceedings need do no more than 

satisfy the minimum procedural requirements of the 

Fourteenth Amendment’s Due Process Clause in order to 

qualify for the full faith and credit guaranteed by federal 

law.’” Ross, 189 F.3d at 1112 (quoting Kremer, 456 U.S. at 

481). The proceedings at issue here met that standard.

Bridge contends that it lacked a full and fair opportunity 

to litigate its equal protection challenge in the agency appeal 

because the Hawaii Supreme Court excluded from the 

evidence the dockets from the Commission’s proceedings 

involving other property owners on which Bridge sought to 

rely to show differential treatment. DW Aina Le‘a Dev., 339 

P.3d at 689, 714–15. Bridge did not lack the opportunity to 

present this evidence, but instead failed to properly introduce 

this evidence into the agency appeal record. Id. at 715 & 

n.18 (finding that Bridge and DW failed to request judicial 

notice). Bridge’s failure to do so does not undermine the 

judgment’s fairness. See Kremer, 456 U.S. at 483, 485 

(having “little doubt” that the state’s procedures were 

constitutionality sufficient and concluding that the plaintiff’s 

“fail[ure] to avail himself of the full procedures provided by 

state law does not constitute a sign of their inadequacy”).

It is otherwise clear that Bridge received a full and fair 

opportunity to raise the equal protection challenge in the 

agency appeal. Bridge raised, briefed, and argued the 

challenge during the proceedings before the Commission 

and on appeal before the circuit court and defended the issue 

before the Hawaii Supreme Court. See DW Aina Le‘a Dev., 

to litigate the relevant issue on the merits in the earlier case. Dorrance, 

976 P.2d at 911; Foytik v. Chandler, 966 P.2d 619, 627 (Haw. 1998).
BRIDGE AINA LE‘A V. STATE OF HAWAII LAND USE COMM’N 49

339 P.3d at 689, 704–06, 717–18. Bridge thus received a 

full and fair opportunity pursuant to both Hawaii law and the 

federal exception to issue preclusion. See Ross, 189 F.3d at 

1112–13 (finding that the plaintiff received a full and fair 

opportunity to litigate an issue in a prior Alaska state court 

proceeding when the plaintiff was able to raise as well as 

fully brief and argue the issue); Dorrance, 976 P.2d at 911 

(making a similar finding under Hawaii law). We therefore 

affirm the district court’s issue preclusion ruling that bars 

Bridge from re-litigating the equal protection issue in this 

case.

With no remaining viable claims, it is unnecessary for us 

to address Bridge’s appeal from the district court’s dismissal 

of the individual capacity claims Bridge raised against the 

commissioners who voted to revert. Trans-Canada Enters., 

Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 476 n.2 (9th 

Cir. 1980) (declining to address judicial immunity “[i]n view 

of our holding that no claim for federal relief” existed).

CONCLUSION

The district court erred in denying the State’s JMOL 

motion because Bridge’s evidence did not establish a taking 

pursuant to either Lucas or Penn Central, and we reverse the 

denial. Consequently, we vacate the judgment for Bridge on 

the taking claims and remand with instructions for the 

district court to enter judgment for the State. We affirm the 

dismissal of Bridge’s equal protection claim. We decline to 

address all other issues raised on appeal as unnecessary.

AFFIRMED IN PART, REVERSED AND 

VACATED IN PART, and REMANDED with instructions 

to enter judgment for Defendants-Appellees/CrossAppellants. Costs are awarded to DefendantsAppellees/Cross-Appellants.