The state Board of Land and Natural Resources did pretty much everything wrong when it approved Wainiha, Kaua`i property owner Craig Dobbin’s certified shoreline in 2010.
That’s the impression one gets from reading the January 27 Hawai`i Supreme Court decision in a case brought against the Land Board, Dobbin, and Dobbin’s consultant, Wagner Engineering Services, Inc. by area residents Caren Diamond and Beau Blair.
Blair and Diamond had requested a contested case hearing on the certification in 2008, arguing that the shoreline had been manipulated with salt-tolerant vegetation. Naupaka had been planted and artificially induced to grow into the beach area, they claimed. But in its decision and order in the case, the Land Board gave short shrift to evidence and testimony they submitted explaining how the property had been altered and where the waves historically washed in that area.
Diamond and Blair appealed to the 5th Circuit Court, which found that the Land Board had arbitrarily and capriciously ignored the historic evidence presented by the two women. Circuit judge Kathleen Watanabe remanded the case back to the Land Board, which issued an amended decision in 2010. In that decision, the board again dismissed Blair’s and Diamond’s evidence and set the shoreline exactly where it had in 2008.
Blair and Diamond appealed to the Intermediate Court of Appeals, which sided with the Land Board and reversed the lower court’s ruling.
When the Supreme Court heard oral arguments last year on the Land Board’s 2010 amended decision, it was clear from questioning that several justices were not impressed with the way the board had handled the case. In its decision, written by departing Associate Justice Simeon Acoba, the court concluded that rather than Blair and Diamond’s evidence being merely anecdotal – as the Land Board had characterized it – in fact, “the only substantial evidence of a historic nature were the years of observations described in the declarations of Diamond, Blair, and [Barbara] Robeson (another area resident), and the record fails in any way to controvert Petitioners’ historical evidence.”
The Land Board must now revisit the case. The court has directed the board to set the shoreline at the debris line or vegetation line, whichever is mauka.
Given the new law passed last year requiring the state to keep public transit corridors along the beach clear from manipulated vegetation, as well as the Supreme Court’s harsh criticism of the board’s past actions, it’s unlikely the board will set the shoreline at the same place on its third try.
The following is a summary of the court’s major findings:
‘Post Hoc Justification’
When the Land Board first approved Dobbin’s certified shoreline in 2008, it stated in its Decision and Order that it had considered only the current year’s wash of the waves and not any historic evidence. However, after the 5th Circuit Court remanded the case back to the board, directing it to consider all historic evidence, the board suddenly claimed that historic evidence offered by DLNR staff regarding the wash of the waves during the two preceding years had been considered the first time around.
The Supreme Court did not buy that claim and argued that even if the board had considered some historic evidence, it did a poor job of it.
“Although it removed from the findings of its initial decision discussing only the ‘current year’s’ wash of the waves, the BLNR’s discussion of historical evidence in its amended decision appears to be a post hoc justification of its earlier decision,” Acoba wrote.
Considering just two years worth of wave evidence and excluding eight years worth of photographic and testimonial evidence from Diamond and Blair failed to meet the 5th Circuit Court’s order, Acoba continued.
“[T]he [5th Circuit] Court instructed BLNR to consider all historical evidence, rather than just the historical evidence the BLNR felt was appropriate,” he wrote, adding that a 1968 Supreme Court decision (Ashford) requires agencies to allow “reputation evidence by kama`aina witnesses” when determining the public-private shoreline boundary.
Chapter 205 of Hawai`i Revised Statutes establishes a policy prohibiting private property owners “from creating a public nuisance by inducing or cultivating the private property owners’ vegetation in a beach transit corridor.” And Hawai`i Administrative Rules require vegetation growth to be “naturally rooted and growing” for it to be used to determine a shoreline, the court stated.
The Land Board’s 2010 decision to locate the shoreline at a dune crest located on the makai end of the naupaka is “bereft of any indication of how the policies of [Chapter 205] have been enforced,” reflecting a disregard of the standards set forth in three previous Supreme Court cases (Diamond I, Sotomura, and Ashford). And Dobbin’s naupaka was not ‘naturally rooted and growing,’ the court found.
The Land Board had wholly adopted Dobbin’s and Wagner’s argument that the sprinklers on the property were parallel to or faced away from the naupaka and were never intended to water it. However, Acoba wrote, “[i]f the sprinklers’ action actually resulted in watering the vegetation as a result of wind or other natural factors, then it is of no import whether the sprinklers were not ‘intended to irrigate’ the vegetation.”
Locating a shoreline where salt-tolerant plants had been grown and were preventing a debris line from forming at the high wash of the waves is contrary to case law and to the legislative purpose of Chapter 205, HRS, he continued.
The court also took the Land Board to task over its dismissal of testimony by Limahuli Garden and Preserve director Chipper Wichman on behalf of Diamond and Blair. Wichman, a lifelong resident of the area, had submitted a letter to the Land Board describing his knowledge of the inappropriate use of salt-tolerant vegetation such as naupaka by private landowners.
During the first contested case hearing, the Land Board had accepted the letter as expert testimony. However, in the second hearing, the board determined that Wichman’s letter was not in the form of a declaration or affidavit, lacked context, and that it was unclear “whether the person who allegedly authored the document is an expert or what his expertise might be, if any.”
First, the court found, state law did not require Wichman’s testimony to be submitted in the form of a declaration or affidavit. Second, it did not matter whether Wichman was an expert in anything. His letter, which noted that he had surfed, fished, and dived in the Wainiha-Ha`ena area all his life – and that he was the Limahuli Garden and Preserve director – should have been considered kama`aina witness testimony, Acoba wrote.
(In a footnote, the court pointed out that the Land Board had accepted Wichman’s letter as expert testimony in the first contested case hearing. “Thus, the notion [in the Land Board’s decision in the second contested case] that Wichman’s testimony was not ‘expert’ appears to be a post hoc justification to disregard that testimony altogether,” the court wrote.)
With regard to the historical evidence Blair and Diamond had submitted, the court pointed out instances where the Land Board just plain got its facts wrong. For example, the board disregarded Blair’s photos because her accompanying declaration “did not contain any information as to the dates when specific photographs were taken or who took the photographs.” The board also contended that it was impossible to determine what her photos were meant to portray.
Acoba pointed out that Blair’s declaration in fact stated that a photo in her Exhibit E “was taken on October 19, 2005 and shows Chris L. Conger [a former DLNR staffer] identifying the location of the shoreline.” He also noted that some of her photos were date stamped and that the Land Board even acknowledged that in its 2010 decision.
Blair’s declaration also stated that the photos in her exhibits G through N showed the high wash of the waves on Dobbin’s property, Acoba wrote.
“The BLNR apparently rejected altogether Petitioners’ evidence of the location of the shoreline, thereby ignoring substantial historical evidence,” he wrote.
The board was nowhere near as critical of evidence submitted by Dobbin and Wagner, Acoba continued. For example, the board included in its decision a finding that the irrigation system on the property was installed several feet from the naupaka and that the sprinkler heads were aimed parallel to or away from it. However, Acoba wrote, the decision did not explain why that finding – based on an affidavit of former property owner Steve Moody submitted by Dobbin and Wagner – was more persuasive than Diamond’s declaration or photos.
While it will likely be some time before the Land Board approves a new certified shoreline along Dobbins’ property, Diamond says the DLNR is already working to rid Kaua`i’s North Shore of artificially planted and/or induced vegetation, in accordance with Act 120 passed by the 2013 Legislature. Already, she said, says several property owners have removed their encroaching vegetation at the DLNR’s request.
For Further Reading
The July 2013 edition of Environment Hawai`i has more background on the case discussed in this article. See, “Kaua`i Shoreline Certification Case Hinges on Credibility of Evidence.”
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