Musings: Convincing the Court

Sometimes it feels like there's no time, because there's so much to do, and it's flying by so fast. Then I stop, watch a spider slowly consume a rose beetle; listen to the full, warbling melodious song of a shama thrush; lie down in the grass and gaze up at the clouds, slaves to the wind. And it feels like there is no time, because it ceases to exist.

The state, when determining a shoreline for the purpose of establishing a building setback, takes the position that there is no time, no history, there's only right now. Whatever the state surveyor sees on the day of the site visit is all that matters, regardless of historical evidence presented to the contrary, even the state's own evidence.

The Hawaii Supreme Court is now considering whether that approach properly reflects its landmark Diamond v State of Hawaii ruling, which extends the public beach to the highest seasonal wash of the waves.

The case was brought by Kauai attorney Harold Bronstein on behalf of Caren Diamond and Beau Blair, who have long argued that landowners are manipulating the shoreline by intentionally cultivating and irrigating naupaka and other vegetation. They contend the thick plantings impede the high wash of the waves and hide the debris line left behind. As a result, the state tends to go along with the landowner, who claims the shoreline is more makai than it truly is. So he gets to build his house closer to the water, and the public loses the chunk of beach that's been planted. In this particular case, the state was prepared to give the landowner 20 feet of public beach.

Kauai Circuit Judge Kathleen Watanabe previously ruled against the state, but was overturned by the Intermediate Court of Appeals. 

In listening to the recording of last Thursday's hearing before the High Court, it seemed the Justices quickly and clearly grasped the key issue. As one Justice noted, under the state's “single-year-snapshot” policy, he could seek multiple certifications and choose the one most favorable to him before building his house.

“Is that the position you want to advocate for the state – that everybody in this state is going to lose the ability to use our beaches because the storms are less this year than prior years?” he asked.

The state claimed that it doesn't really work like that, because the certification is good for only one year. But as another Justice noted, “The house is permanent, and so the certification does have an impact on the public beach.”

The Justices also expressed incredulity that the Board of Land and Natural Resources refused to consider Chipper Wichman, head of the National Tropical Botanical Garden, as an expert witness in naupaka growth, and that it gave so little weight to historical photographic evidence of the shoreline presented by Blair and Diamond, who had lived in the area for decades.

Another Justice wanted to know whether Wichman, Blair or Diamond were allowed to testify, and was told no, the state had considered only documents. That prompted him to ask, “How much credibility do you get from paper?”

From their sometimes testy and incredulous exchange with Deputy State Attorney Linda Chow — "What do you mean you don't have the record? Aren't you representing the state?" — it seemed at least some of the Justices were questioning the state's credibility.

“The public policy is to extend as much beach to the public as possible, and that's the way it should be,” Bronstein said in his closing statements.

The question now is whether the High Court still agrees, and if so, why the state has been taking an approach contrary to the interests of the public.