High Court Strikes Down State Shoreline Policy

In a decision that strongly reaffirms beaches as a public trust resource, the Hawaii Supreme Court  has ruled the state must consider historical evidence when determining the shoreline.

The opinion, released Monday morning, also reiterates the high court's 2006 ruling that vegetation may not be planted to manipulate the shoreline, which becomes the starting line for a building setback. The opinion states:

The use of such a false vegetation line in making a shoreline determination would allow landowners to effectively erect an artificial 'barrier'; extending their land further makai.

The ruling effectively puts an end to the state's “single-year snapshot” approach, in which the state surveyor is guided solely by what's visible the day of the site visit, even if historical photographs indicate the highest wash is further mauka. That approach tends to favor landowners, at the expense of the public trust.

The opinion also reaffirms that citizens have an important role to play in protecting the public trust, reiterating an earlier court ruling that the state must consider non-expert kamaaina testimony in determining the shoreline.

In the past, the state Department of Land and Natural Resources (DLNR) regularly used the lowest reach of vegetation to set the shoreline, prompting a lawsuit by attorney Harold Bronstein on behalf of Wainiha resident Caren Diamond.

That litigation resulted in the high court's 2006 landmark Diamond I decision, which clearly defined the public beach as extending to the highest seasonal wash of the waves.

But landowners continued to plant coastal vegetation in order to impede the waves and make it difficult to locate the debris that is left when the surf washes in. That problem was further compounded by the state's decision to adopt the “single-year snapshot” approach.

Bronstein sued again to challenge that policy, on behalf of Diamond and Beau Blair. Kauai Circuit Judge Kathleen Watanabe ruled against the state in 2010 and found the “single-year snapshot” interpretation of the law to be “arbitrary, capricious and/or characterized by an abuse of discretion” because it “conflicts with and/or contradicts the purpose and intent” of the state shoreline statute.

Watanabe's ruling was later overturned by the Intermediate Court of Appeals, prompting Bronstein to seek a decision from the Hawaii Supreme Court.

As I previously reported for the Honolulu Weekly, the Justices quickly and clearly grasped the key issue during oral arguments last April. As Justice Richard Pollack 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?” Pollack asked Deputy State Attorney Linda Chow.

“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.

In issuing their unanimous ruling today, the Justices agreed.

“We conclude that the BLNR must consider historical evidence in making its shoreline determination,” wrote Justice Simeon Acoba, who went on to note the state had failed to do so. “Thus, where there was evidence of prior years’ 'wash of the waves', the agency must consider the evidence from those years when making the shoreline determination.”

Acoba also noted that the high court previously had found “reputation evidence by kamaaina witnesses” must be allowed in determining the “public and private boundary dividing private land and public beaches.” The ruling states:

Thus, the BLNR was wrong when it used only the historical evidence from the two preceding winter seasons to determine the “highest wash of the waves,” rather than evaluating historical evidence of the past eight years for which Petitioners provided testimony of their observations.

We therefore also expressly reject [landowner Craig] Dobbin and [private surveyor Ron] Wagner’s contention that “the ultimate determination of the upper reaches of the wash of the waves at high tide . . . is [solely] one for experts and those qualified under the law.” This is wrong as a matter of law.

The high court dinged the DLNR for continuing to disregard state law when setting shorelines, and reiterated the language from its 2006 decision:

This holds that where the shoreline is marked by both a vegetation line and a debris line, the line further mauka is used to locate the shoreline. Any approach undertaken by the BLNR must be executed in accordance with this basic precept.

The opinion also re-confirmed two rulings by the late Chief Justice William Richardson. These are the 1968 Ashford decision, which set forth many of the foundations underlying future shoreline determinations, and the 1973 Sotomura decision, which established that “[p]ublic policy, as interpreted by this court, favors extending to public use and ownership as much of Hawaii’s shoreline as is reasonably possible.”

The Justices further noted that though a shoreline certification lasts for just one year, “the shoreline determination can be a significant designation, resulting in ramifications for more than just one year.”

That certainly has proven true in Wainiha, where many houses were constructed without adequate setback because their shorelines were certified in years with low wave heights. Most notably, Joe Brescia would've been forced to build his house further mauka, rather than atop iwi kupuna.

Now that the state has been slapped down twice by the HSC, let's hope it finally starts setting shorelines that protect beaches as a public trust resource, rather than allowing landowners to privatize them.