What kind of evidence is sufficient to prove that a shoreline certification was wrong? Are photographs and eyewitness testimony of where the waves wash and whether the shoreline had been manipulated good enough? Do photos need to be accompanied by maps? Do photo dates need to be independently verified?
These are the kinds of questions the Hawai`i Supreme Court is expected to answer with its decision on the appeal from Beau Blair and Caren Diamond of a 2008 shoreline certification in Wainiha, Kaua`i. The court heard oral arguments on April 4.
With Gov. Neil Abercrombie’s signing last month of a bill that makes permanent the requirement that landowners keep the beach clear of artificially induced or maintained vegetation, this case may be one of the last of its kind. One of the goals of the legislation (now Act 120) was to end the practice of planting and enhancing salt-tolerant vegetation along the shore to expand one’s lot and obtain a shoreline certification from the state. With a certified shoreline in hand, the county shoreline setback can then be determined; the further seaward the shoreline, the larger the buildable area of a lot. The result can be structures built dangerously close to the ocean.
In this case, the Board of Land and Natural Resources twice dismissed as “anecdotal” Blair’s and Diamond’s declarations and their photographs showing the planting and watering of vegetation along the shoreline of Craig Dobbin’s property. Photos they provided also showed wave debris scattered far inland of a 2008 certified shoreline.
The Hawai`i Supreme Court already decided in 2006 in <i>Diamond v. State of Hawai`i</i> that because shoreline vegetation is often manipulated by landowners to extend their properties, vegetation lines alone cannot be used to determine shorelines for setback purposes.
In the case now before the court (<i>Diamond v. Dobbin</i>), state deputy attorney general Linda Chow argues the state surveyor and the Department of Land and Natural Resources’ coastal specialist considered not only the vegetation line, but also debris lines and erosion scarps in 2008.
And as far as the evidence Diamond and Blair presented, including expert testimony by National Tropical Botanical Garden (NTBG) director Chipper Wichman, it was not strong enough to persuade the board to depart from its staff’s determination of where the shoreline should be — at the crest of the beach dune fronting Dobbin’s property, Chow says.
Blair and Diamond argue that the shoreline should be 20 feet inland from the crest, where the state surveyor had proposed setting the shoreline in 2005.
Questions from the justices suggested some of them were convinced that the vegetation along Dobbin’s property had been artificially enhanced. Whether they will agree that the shoreline should have been set further inland as a result remains to be seen.
Some of the photographs submitted by Blair and Diamond show that years before Dobbin bought his lot, the yard was mainly just a large flat lawn with a small dune covered by waist-high beach naupaka at the far edge near some ironwood trees. Debris lines can be seen scattered across the lawn.
Today, the naupaka is taller, denser, and blankets the lawn where the debris lines used to be visible.
Diamond and Blair, who regularly visited the beach there with their families, documented plantings in and around the shoreline area, as well as the installation of irrigation lines in late 2003 and early 2004. Jeffrey Galloway, who had recently bought the property, applied for a shoreline certification on June 27, 2005. (State law defines a shoreline as the upper wash of the waves — not including storm or seismic waves — at high tide during the season 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.”)
Diamond, Blair, and Barbara Robeson, who also lives in the area, argued that the shoreline proposed by Galloway’s surveyor used unnaturally cultivated vegetation to delineate the shoreline. After a site visit with them that October, state surveyor Reid Siarot recommended that the shoreline be located at the “debris line near the mauka edge of the naupaka hedge.” When Galloway’s surveyor failed to follow his recommendation, Siarot advised the DLNR’s Land Division to reject Galloway’s application.
Galloway then sold the property to Dobbin, who in January 2008 applied for a shoreline certification based on a survey he had done in December 2007. He proposed setting the shoreline at the dune crest.
By then, the naupaka had grown so thick it was nearly impossible to see debris lines on the property. In April 2008, Blair, Diamond, and Robeson visited the site with Siarot, who this time agreed with the proposed shoreline.
Blair and Diamond appealed the decision, submitting declarations as well as the photos they’d taken over eight years, but then-Land Board chair Laura Thielen found they were insufficient to support relocation.
Blair and Diamond, represented by attorney Harold Bronstein, appealed to the 5th Circuit Court on July 20, 2009. Circuit Judge Kathleen Watanabe ruled in their favor on April 6, vacating the Land Board’s denial of their appeal and the certified shoreline. Watanabe also remanded the matter back to the Land Board.
So on May 21, 2010, the Land Board issued a new order, again denying Blair’s and Diamond’s appeal and locating the shoreline at the dune crest. Blair and Diamond appealed again, and once more Judge Watanabe agreed with them.
“The beach fronting Lot 12 is currently covered with salt tolerant naupaka and beach heliotrope trees planted by the prior owner to create an artificial shoreline,” Watanabe wrote in her decision, adding, “The sand and other debris pushed mauka by the winter waves gets stuck and trapped in the roots. … This artificially induced and enhanced vegetation is incorrectly being used to locate the shoreline and/or hinder the true location of the shoreline.”
She wrote that Blair’s and Diamond’s evidence clearly showed that the shoreline reaches further inland than the dune crest, and added that the Land Board’s position that only the current year’s evidence of the upper reaches of the wash of the waves should be considered is arbitrary, capricious, and an abuse of discretion or an unwarranted exercise of discretion.
The state, Dobbin, and his surveyor appealed to the Intermediate Court of Appeals, arguing that the circuit court improperly engaged in fact finding, rather than deferring to the Land Board.
Bronstein, however, argued to the ICA that, “the state surveyor simply cannot ignore his own prior recommendation of October 19, 2005, which approximately two years earlier, locates the shoreline as ‘mauka of the dune crest.’” He added that the Land Board clearly abused its discretion when it analyzed only one year’s wave data to locate the shoreline, “especially when as in this case, a physical structure may be present on the property for decades to come based upon that shoreline determination.”
The ICA agreed with the state and Dobbin.
In its August 2012 decision, the ICA wrote that the Land Board didn’t disregard Diamond’s and Blair’s evidence, but instead weighed it against the state’s evidence, finding, among other things, that the photos they submitted didn’t accurately depict the high water mark and weren’t properly dated.
During the 2008 site visit, the state surveyor and DLNR staff conceded that the vegetation in the area had changed significantly since 2005 and that it was “having a notable impact on the shape and elevation of the frontal dune as well as the extend of inundation for the wash of the waves,” the memorandum continues. But they also found no evidence that the waves in the intervening years reached as far inland as they had in 2005.
Earlier this year, the Hawai`i Supreme Court agreed to hear the case. During oral arguments, several justices struggled with the Land Board’s conclusion, made without hearing live testimony, that Diamond’s and Blair’s evidence and declarations were not credible. They also seemed taken aback by the state’s reluctance to admit that the vegetation fronting Dobbin’s property was artificially induced.
“There are several findings I find simply unsupportable that the BLNR made. I’m not sure if it was even fair,” Associate Justice Simeon Acoba said.
Regarding the Land Board’s finding that was impossible to know from Blair’s testimony what the photos were purported to portray, Acoba asked Chow whether that finding contradicted Blair’s declaration, which included a list of dates and photo descriptions.
When Chow replied that Blair never stated that she took the photographs, Acoba asked whether it mattered who took them.
Whether or not Blair took them, Chow argued, the photos showed a limited amount of the property and “even if you look at the photographs, there’s no correlation to a map. … That is one of the requirements of the shoreline certification process [so] the surveyor can look at to put it into context.”
She later added that the Land Board doesn’t have to explain all of the factors it uses to determine the shoreline. The Legislature gave the board the authority to certify shorelines and once it makes a decision, there is a “presumption of validity” that the shoreline was correctly located.
Acoba and Associate Justice Richard Pollack also grilled Chow on the Land Board’s decision that the NTBG’s Wichman, who submitted testimony on the salt tolerance of naupaka for Blair and Diamond, was no plant expert.
Pollack noted that in the Land Board’s first review of the case, it considered Wichman an expert, but in its second review, “all of a sudden, Mr. Wichman was someone they almost ridiculed. … What happened?”
“They took a new hard look at all the evidence. … There was a lack of reliability in the letter he submitted,” Chow said.
Pollack was skeptical, saying the board’s sudden decision that the head of the NTBG is no longer a plant expert “sounds like to me like they’re trying to justify something.”
To this, Chow replied, “The first finding says he appears to be testifying from some expertise. Looking at the letter, it just says he is the head of the NTBG. It does not say he has the credentials to be qualified as an expert.”
To Chief Justice Mark Rektenwald, the case seemed really to center on whether the vegetation on the lot was artificially enhanced, and if it was, how far the waves would have reached without it.
Associate Justice Sabrina McKenna seemed to have had already made up her mind about the artificial enhancement. “Hasn’t that happened here? Isn’t that pretty clear in this case?” she asked Chow.
Chow replied that the current and previous landowners deny any artificial planting.
To this, Pollack said, “The point is, is that naupaka is going to grow on its own. And if you have sprinklers in the area, there’s going to be windblown water and there’s going to be seepage and it’s going to grow.”
To Diamond, all of this could have been avoided had the DLNR took action when the plantings and irrigation first went in nearly a decade ago.
“DLNR doesn’t ever follow through with somebody,” she says. With the Dobbin certification, the surveyors set the shoreline pretty close to the edge of vegetation, but far enough inside the dune to say they weren’t using the vegetation line exclusively, she says.