POSTED: 30 JULY 2006 - 5:00pm HST

Great news for beach preservation & public access!

property owner Landscaping" public beach on Kauai (photo by Caren Diamond)

Press release from Earthjustice 25 October 2006

Hawai`i Supreme Court issues landmark decision on Hawai`i’s shorelines. Shoreline reaffirmed at highest wash of waves; use of induced vegetation rejected Honolulu, HI – Yesterday, the Hawai`i Supreme Court issued a ruling strongly reaffirming that the shoreline in Hawai`i, which marks the boundary between public beach and private land, extends to the highest wash of the waves, and rejecting the use of artificially planted vegetation to determine the shoreline. The case on appeal, Diamond v. State, involved a challenge by North Shore Kaua`i residents Caren Diamond and her attorney, Harold Bronstein, of the decision of the Chairperson of the state epartment of Land and Natural Resources (DLNR) to certify the shoreline of a lot on Kaua`i’s North Shore based on vegetation the landowner planted and propagated to create a false shoreline further makai (seaward). Earthjustice, on behalf of citizen groups Public Access Shoreline Hawai`i and Sierra Club, Hawai`i Chapter, filed an amicus brief in support of Diamond and Bronstein’s appeal.

The court, in a unanimous decision, reversed the state’s shoreline certification and held that the shoreline should be established “at the highest reach of the highest wash of the waves.” The court also clarified the role of the “vegetation line” and “debris line” as indicators of the shoreline. Contrary to the state’s and landowner’s interpretation of legal precedent, the court ruled that the vegetation line trumps the debris line only when the vegetation line lies “more mauka” (inland) than the debris line and furthers the public policy of extending to public ownership and use “as much of Hawaii’s shoreline as is reasonably possible.”

The court also ruled that the state erred in using artificially planted and propagated vegetation to determine the vegetation line based on the reasoning that the egetation survived more than a year. The court cited the public policy of protecting and extending public shoreline resources and uses and emphatically “reject[ed] attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties.”

“I am pleased that the Court acknowledged the principles we have been articulating all these years,” said Caren Diamond, who, together with Bronstein and other community members, have resisted attempts by landowners to extend their lots onto public beach with artificially planted vegetation. “Now, our government officials need to start enforcing the law and stop vegetative encroachments that are causing the loss of our sandy beaches.”

The court’s decision follows on the heels of the state’s recent amendment of agency rules, effective June 2006, to remove any preference for the vegetation line over the debris line in the determination of shorelines, an issue first raised years ago by Diamond and Bronstein in their challenges to the location of certified shorelines. The rule amendment was the product of a settlement of a lawsuit brought in 2005 by Earthjustice on behalf of citizen groups Public Access Shoreline Hawai`i and Sierra Club, Hawai`i Chapter. The state rendered its decision in the Diamond case in 2004.

“We appreciated the opportunity to work with Chair Peter Young and DLNR to fix the problem of the agency’s shoreline definition,” said Earthjustice attorney Isaac Moriwake.

“However, landowners still persist in planting vegetation and calling it the shoreline. This ruling sends a clear message that the game is over.”

In recent years, intensifying public controversy has focused on the ongoing loss of beaches statewide caused by coastal development too close to the ocean. One of the leading concerns is the widespread use of induced vegetation by landowners and surveyors to manipulate the shoreline further makai and to justify building closer to the ocean. This not only invades public beach and blocks public access, but also paves the way to the eventual erosion and loss of the beach, ironically to the detriment of the landowner as well as the public.

According to coastal geologists, one-fourth of Oahu’s beaches and one-third of Maui’s beaches have already been lost, largely because of development too close to the ocean. “The supreme court’s ruling vindicates the public’s rights to shoreline access and use,” said Jeff Mikulina, Executive Director of the Sierra Club, Hawai`i Chapter. “But we still need our state and county officials to get serious about protecting these rights from getting buried under walls of vegetation and concrete.”

“I applaud the tireless, personal efforts of Ms. Diamond and other citizens across this state seeking to defend the public’s right of beach access,” said Claudia Rohr, board member of Public Access Shoreline Hawai`i. “This victory belongs to them, as well as all the people of Hawai`i.”

Isaac Moriwake, (808) 599-2436
Caren Diamond, (808) 826-5150

Naupaka covered beach in front of home at Haena, Kauai (photo by caren Diamond)

Ruling upholds shoreline access

by Jan TenBruggencate 26 October 2006 in The Honolulu Advertiser

Hawai'i Supreme Court's decision came yesterday in the groundbreaking shoreline certification case Caren Diamond and Harold Bronstein v. State of Hawai'i, Board of Land and Natural Resources, and Carl Stephens.

Facts of the case:
Landowner Carl Stephens obtained a shoreline survey for his Ha'ena, Kaua'i, property that placed the shoreline within coastal vegetation but well seaward of the reach of winter waves, as evidenced by testimony of longtime residents and by photographs.
The State Surveyor approved the survey. Ha'ena residents Diamond and Bronstein appealed to the Board of Land and Natural Resources and lost, then appealed to the 5th Circuit Court, which also ruled against them.

Their appeal to the Hawai'i Supreme court was successful Tuesday.

Current status of property: Stephens has since sold the property and a subsequent owner is building with permits based on the now-rejected shoreline certification. Construction is likely to be allowed to be completed. The shoreline decision will apply to future shoreline certifications.

Supreme Court's order:

"In this case, (the Land Board's) ... Order Denying Appeal was ... erroneous as a matter of law, and the circuit court erred in affirming it. We therefore reverse the circuit court's Jan. 11, 2005 final judgment." Diamond v. State of Hawai'i.

Supreme Court rejects using "induced" vegetation:

"The utilization of artificially planted vegetation in determining the certified shoreline encourages private land owners to plant and promote salt-tolerant vegetation to extend their land further makai, which is contrary to the objectives and policies of HRS chapter 205A as well as the public policy we set forth in Sotomura." Diamond v. State of Hawai'i.

The law on shoreline location:

"The upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." Hawai'i Revised Statutes 205A-1.

Previous Supreme Court ruling:
"Public policy, as interpreted by this court, Favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible." - County of Hawai'i v. Sotomura, a 1973 Hawai'i Supreme Court ruling.

The Hawai'i Supreme Court, in a landmark ruling that resolves three decades of conflict over shoreline property, has clearly ruled that the public beach must be established as wide as is reasonably possible.

The decision means private beachfront property stops at the highest reach of the waves at high tide in winter, regardless of the location of salt-tolerant vegetation, like the naupaka and heliotrope plants that some beachfront property owners plant and even irrigate.

"This is really an incredible ruling that upholds public policy and puts shoreline at the highest wash of the waves," said plaintiff Caren Diamond.

The court's opinion specifically applies to the certification of shorelines, a procedure that's done before a beachfront property owner can build a home or other structure. County zoning bodies then measure a building setback inland from that line, and the property owner can build up to that line.

The shoreline building issue has been attracting public officials' attention statewide, as erosion threatens coastal homes and property owners build seawalls to protect their investments.

Much of Lanikai on O'ahu, for example, is already armored, and in many cases, there's no longer a sandy beach for public access fronting them. Maui has already established a policy of increasing shoreline building setbacks in areas of high erosion, and Kaua'i County is considering similar legislation.

Tuesday's opinion was a victory for two Ha'ena residents, Diamond and attorney Harold Bronstein, who have challenged the construction of homes perched at the edge of the public beach.

Several homes on the Ha'ena shore, permitted under the old interpretation of the shoreline rules, regularly have waves lapping at their foundations in winter, Diamond said. Some property owners have planted and watered vegetation fronting their properties, which appears to push their private yards into sandy beach. It effectively means there is limited or no public beach access along those properties.

"Landowners still persist in planting vegetation and calling it the shoreline. This ruling sends a clear message that this game is over," said Isaac Moriwake, an attorney for Earthjustice, which had filed a friend-of-the-court brief in the case on behalf of Public Access Shoreline Hawaii and the Sierra Club.

While the Supreme Court's decision clarifies some things, the coastal problems are far from solved, said Jeff Mikulina, director of the Sierra Club's Hawai'i Chapter.
"The Supreme Court's ruling vindicates the public's right to shoreline access and use, but we still need our state and county officials to get serious about protecting these rights from getting buried under walls of vegetation and concrete," Mikulina said.

Some government agencies notably the state Department of Land and Natural Resources have recognized the problems and have improved their procedures with respect to coastlines.

Land department director Peter Young said his agency during the past two years has changed its approach, expanding its own staff expertise and bringing in Sea Grant coastal specialists to assist when shorelines are certified.

"We recognized that we needed to do things better, and we've been doing them. We're looking at all the evidence on the ground. We look at the debris line, we look at dunes. And I think that the court verified that the way we do things now and the rules that we've changed, that the department's doing it the correct way," Young said.

Diamond said that the land department has made important strides, but still falls short of meeting the requirements of the Supreme Court's ruling.

"They have really improved their practices. I've seen them use the dune instead of the vegetation line, but I still haven't seen them go to the highest wash of the waves," she said.

Dean Uchida, a private property rights advocate and executive director of the Land Use Research Institute, said that the decision will ultimately have impacts in other areas.

"It creates a definite problem. It's really going to raise serious questions and concerns from a private property standpoint about access, ownership and zoning," Uchida said.

State law is clear that the shoreline is established at "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs." But since it might be difficult for someone to pinpoint that location, the law adds that it's usually possible to determine it by vegetation or debris.


The court said that neither is more important than the other in making the shoreline determination. It suggests that if both debris and vegetation are present, the shoreline is indicated by the more landward of the two.

In saying this, the court cited a 1973 Supreme Court opinion, County of Hawai'i v. Sotomura. The Sotomura case has helped cause many of the misunderstandings in recent decades over shorelines, since in that case, the court said the vegetation line should mark the shoreline. But in Tuesday's ruling, the court noted that this was only because in Sotomura, the vegetation line was mauka inland of the debris line.

"A careful reading of Sotomura makes clear that the vegetation line was not intended always to trump the debris line. The Sotomura decision clearly favored the public policy of extending 'as much of Hawai'i's shoreline as is reasonably possible' to public ownership and use," the court said in Diamond v. State of Hawai'i.

Ultimately, the decision will likely have no direct impact on the Ha'ena property that generated the case. A lower court allowed permits to be issued based on the now-rejected shoreline certification, and a house is now under construction on it. But the owner of the lot who was cited in the case, Carl Stephens, is not the one who will use the house.

Stephens, a Washington state resident, told The Advertiser last month that the repeated appeals of his shoreline certification were so frustrating that he put his place on the market.

"You get the shoreline certified, and they appeal it, and by the time you go through the protests, your certification expires and you have to start over. My place is now being built, but I've since sold it. I was just tired of it," Stephens said.

Ruling sparks beach debate
by Tom Finnegan on 26 October in The Honolulu Star Bulletin

A high court decision intensifies arguments over Hawaii seaside property setbacks. Enevironmentalists have asserted that a Hawaii Supreme Court ruling this week opens public beach access and prevents private property owners from encroaching.

But private property advocates caution that the ruling should not be interpreted that broadly and does not affect beach access.

Tuesday's court ruling, which reversed a Kauai Circuit Court case, said the Department of Land and Natural Resources had been incorrectly making shoreline certifications for years.

DLNR workers, as a rule, previously used the vegetation line to determine the shoreline certifications. The certifications are used by landowners to determine how far from the beach a house should be set back.

But property owners from Kauai to the Big Island started planting naupaka and spider lilies, plants that survive on the beach, to push their property lines toward the ocean, make their houses closer to the ocean and cut off access, environmentalists said.

Land Board Chairman Peter Young said the department had already changed the way its experts certify shoreline properties, and had hired experts to accurately ensure the shoreline coincided with state law, which states that the shoreline starts at the highest wash of the waves at high tide during the high swell season of the year.

Naupaka bushes planted by shorefront landowners have made walking along the beach on Kauai's North Shore difficult, even in the summertime.

On the North Shore of Kauai, where the Supreme Court case originated, longtime resident Caren Diamond said vegetation grown by property owners has caused the public to lose access along the beach and dozens of feet of shoreline from Haena to Wainiha. Plantings have even caused some houses to be built so close to the ocean, they get wet during periods of high surf, she added.

Diamond and Kauai lawyer Harold Bronstein challenged a 2002 certification of Carl Stephens, a Haena property owner. Due to the plantings of naupaka and spider lilies by Stephens' landscapers, the high court stated that the shoreline had moved almost 11 feet in some areas, from shoreline certifications in 1990 and 2002. The certifications are only good for one year, and must be redone if building does not start in that year.

Bronstein and Diamond argued that DLNR rules did not follow state law by not using a debris line or where the waves wash in, but strictly determining certification by where the vegetation was planted.

The Supreme Court agreed.

In the unanimous opinion, the high court said that using "artificially planted vegetation in determining the certified shoreline encourages private landowners to plant and promote salt-tolerant vegetation to extend their land further makai, which is contrary to the objectives and policies of state law."

Commenting on the decision, Young said, "If we hadn't tried to do it smarter and better, it would've been a problem."

"I've instructed our guys when they go out to look at all the evidence" such as debris, vegetation and dunes, he added, to accurately determine where the shoreline begins, he said.

However, private property advocate Robert Thomas cautioned people from interpreting the decision too broadly.

The court's decision sticks only to shoreline certification and not where private property begins and the public beach ends, said Thomas, managing attorney for the Hawaii office of the Pacific Legal Foundation.

If the decision is used as "a determination for ownership purposes, then I think this case has severe constitutional problems."

Thomas said shoreline certification, which only lasts a year, and property lines are completely different. If the property lines are changed, then the land must be condemned and owners will have to be compensated, according to the U.S. Constitution.

But Earthjustice attorney Isaac Moriwake saw it differently.
The shoreline, either for certification or to determine property ownership, uses the same wording in state law -- the highest wash of the waves at the highest tide during the high swell season.

Shoreline plantings on Kauai's North Shore have cut down beach access for the public.

So Moriwake said that while the DLNR might have erred by using the vegetation line to determine the shoreline, it does not change the fact that the shoreline is where it has always been: the spot where the water pushes in during high tide.

"It was always the high water mark," he said. "The vegetation line was just an indicator."

Moriwake said he is sure the next time a property ownership case comes before a state court, this case will be used to determine the shoreline.

It is too late for Stephens' property, however. Diamond said the house, using the old certification, is already halfway finished.

Stephens' lawyer, Bernard Bays, did not return a call seeking comment.

Despite the decision, Diamond said she will continue to police DLNR workers when they certify shorefront properties on Kauai. She has been doing it for seven years on the Garden Isle and challenged about a half-dozen, she said.

The naupaka plantings "are causing us to lose all our beach," she said. "Landscapers say it's a native plant and therefore it's good."

The decision, she said, will benefit landowners as well, especially new buyers who do not know how far winter waves on the North Shore will push. "In the end it's the landowner who will suffer the most money loss and aggravation."

Line In The Sand
The issue: Where does the public beach end and private property begin?
The ruling: The Hawaii Supreme Court said Tuesday the state cannot using vegetation alone to determine shoreline certifications, used to determine where a house is built.

Environmentalists: The ruling will affect shorelines across the state. Property owners can no longer grow plants to extend their property lines onto public beaches.

Private property advocates: The ruling only affects shoreline certifications and has no effect on private property ownership.