Caren Diamond and Harold Bronstein didn’t like the way the Department of Land and Natural Resources was locating shorelines on Kaua`i’s North Shore. More than four years ago, the two Kaua`i residents challenged the state surveyor’s use, and the department’s acceptance, of the vegetation line as demarking the upper limit of the beach.
State law, they argued, required the department to place the line at the limit of the high reach of the wash of the waves during the winter surf.
The state surveyor and the DLNR staff disagreed, noting that the DLNR’s own rules allowed the vegetation line to define the shoreline, even if the vegetation was, as they showed, planted and irrigated by the landowner in a deliberate attempt to alter the shoreline and extend the reach of his private property.
More than four years passed, during which time Diamond and Bronstein were rebuffed by DLNR staff and the state surveyor, the Board of Land and Natural Resources, which upheld the original shoreline survey in a contested case, board chair Peter Young, who denied an administrative appeal, and Judge George Masuoka of the 5th Circuit Court of Hawai`i, who refused to overturn the denial of the administrative appeal.
In October, they finally won where it counted: the Hawai`i Supreme Court. The justices unanimously found in favor of Diamond and Bronstein. The Land Board’s denial of their appeal of the initial shoreline certification was “erroneous as a matter of law, and the circuit court erred in affirming it,” they wrote.
The Land Board had already folded on the issue of using vegetation as a preferred indicator of the shoreline. Last spring, to settle a lawsuit brought by Earthjustice on behalf of Public Access Shoreline Hawai`i and the Hawai`i Chapter of the Sierra Club, the department had amended its rules to mirror the language of the statute. Now both define the shoreline as 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.”
Vast Public Importance’
With the discrepancy between the rule and the law having been resolved, the high court addressed the issue of whether the conflict was now moot. The state wanted to argue that the dispute over the particular shoreline in question, fronting land in Wainiha, was also moot, since the shoreline survey had expired one year after certification.
“We cannot vacate a shoreline certification that has already expired,” the justices wrote. “As such, this issue would appear to be moot. However, … we have recognized an exception to the mootness doctrine in cases involving questions that affect the public interest and are ‘capable of repetition yet evading review.’ This is such a case because: (1) the definition of ‘shoreline’ is certainly a matter of vast public importance; and (2) it is virtually certain that, given that the appeals process generally takes more than one year, any future shoreline certification of this or any other property will expire before the appellate process is complete, effectively frustrating appellate review.”
Diamond and Bronstein argued that the shoreline had to be either the debris line or the vegetation line, whichever is further mauka. The Land Board argued, on the other hand, that “there is no stated requirement, either in the statute or the rules, that both lines must be considered in locating the shoreline. It is within the discretion and expertise of the DLNR to decide what is the best evidence available that accurately reflects the location of the shoreline.”
The Supreme Court rejected the Land Board’s interpretation. It conflicted with past court decisions (notably County of Hawai`i v. Sotomura, in 1973), the court said, which support “the interpretation that the shoreline should be certified at the highest reach of the highest wash of the waves.” “In Sotomura, we stated that ‘[p]ublic policy, as interpreted by this court, favors extending to public use and ownership as much of Hawai`i’s shoreline as is reasonably possible.’”
In the Land Board’s order denying Bronstein’s and Diamond’s appeal, the Land Board “disregarded the plain language of HRS § 205A-1, and rejected the contention that the shoreline must be located at the ‘highest reach of the highest wash of waves.’” Diamond and Bronstein had claimed that the certified shoreline must be located at the annually recurring highest reach of the highest wash of the waves, regardless of where the vegetation line might occur. The board’s order denying their appeal rejected their claim, stating that it was “not consistent with the definition of ‘shoreline,’ and is therefore rejected.”
That finding, as well as the state surveyor’s claim that he relied on the vegetation line alone as “more stable evidence” of the shoreline, “are troubling, insofar as they assert that the certified shoreline could be located further makai than the actual upper reaches of the wash of the waves,” the justices found. “This clearly is contrary to the definition of ‘shoreline.’”
The Supreme Court also pointed to the legislative history of the statute, enacted in 1986. The standing committee report noted that the statute was amended “to further clarify the manner in which the shoreline is determined to protect the public’s interest.”
“This clarification, which requires the shoreline to be determined at the time when the upper reaches of the wash of the waves would be the highest, evinces the Legislature’s intent to reserve as much of the shoreline as possible to the public,” the justices found. “Accordingly, the ‘upper reaches of the wash of the waves’ is the highest reach of the highest wash of the waves in non-storm or tidal conditions. Insofar as the Order Denying Appeal states otherwise, the circuit court erred as a matter of law in affirming it.”
Vegetation or Debris?
How, then, to determine the “upper reaches of the wash of the waves”? “Defendants [i.e., the state] defend the certified shoreline location … by asserting that the stable vegetation line should control because it is more permanent and easily recognizable, stating that ‘reason dictates that the boundaries could not be so evanescent as to be merely a point where someone happens to observe the run-up of a wave,’” the justices wrote. “To the extent that the Defendants are contending that the vegetation line should always be preferred over the debris line, we disagree.”
The statute itself gives no preference, they noted: “Thus, it is not within the province of this court to hold that the vegetation line should trump the debris line as a matter of law.” Also, the legislative record “supports the contention that there should not be a preference for the vegetation line.” Language in the law that seemed to tilt the balance in favor of the vegetation line was deleted in 1979, the justices observed. “Had the legislature intended the vegetation growth to prevail over other evidence of the highest wash of the waves, it could have kept the language expressing preference for the vegetation. It did not, however, and we decline Defendants’ invitation to so interpret the current statute.”
The court’s decision in the Sotomura case, “at first glance,” seems to support both the defendants’ and the plaintiffs’ position, the justices wrote, insofar as it describes the vegetation line as “a more permanent monument” of the shoreline.
“However,” the court continued, “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. Although the decision acknowledged that the vegetation line is a ‘more permanent monument,’ based on the legislative intent and public policy favoring shoreline access, that statement is best read as merely supporting the court’s decision to use the most mauka line. Indeed, as evidenced by the facts of the present case, vegetation is not always permanent, and there is no indication that the decision in Sotomura contemplated owners planting and promoting salt-tolerant vegetation,” as landowner Carl Stephens had done in the case at hand.
The court then weighed in specifically on the matter of artificial versus natural vegetation. The state law defining the shoreline does not define “vegetation growth,” but the DLNR’s rules do, describing it as “any plant, tree, shrub, grass or groups, clusters, or patches of the same, naturally rooted and growing” (emphasis added by the court).
“Plaintiffs argue that the planting and irrigation of salt-tolerant plants by Stephens in July or August 2000 was an ‘attempt to establish a false vegetation line.’ As such, Plaintiffs contend, ‘the artificial vegetation line relied upon by the … survey and certified by the State can not and does not represent the highest wash of the waves, and therefore does not represent the correct shoreline pursuant to” statute. The state argued that, despite the fact that the vegetation had been planted and irrigated by human activity, “such vegetation was ‘naturally rooted and growing’ because it had survived more than one year without human intervention and it could therefore be utilized in determining the location of the shoreline.”
“We agree with Plaintiffs,” the court said.
“The utilization of 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 HRS chapter 205A as well as the public policy we set forth in Sotomura. Merely because artificially planted vegetation survives more than one year does not deem it ‘naturally rooted and growing’ such that it can be utilized to determine the shoreline. We therefore reconfirm the public policy set forth in Sotomura and HRS chapter 205A and reject attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties.”
Although the court found that the case was not moot, and the decision is certainly one that will have impact for years to come, in terms of the on-the-ground reality, it comes too late to influence decisions already made on the basis of the erroneous shoreline survey. Carl Stephens obtained a permit to build a house, and work is ongoing on a new house whose footprint includes land that would possibly have been off-limits to construction if the shoreline setback had not been based on the artificially fixed vegetation line.
Years of similar erroneous shoreline surveys, including some challenged by Diamond, have resulted in the public losing access to long stretches of formerly public beaches and have meant the loss of thousands of square feet of public lands, Diamond says. In many cases, artificially induced plantings of spider lilies and naupaka, such as that planted by Stephens, have resulted in homes being built so close to the ocean, they get wet in periods of high surf, she said.
How the court’s ruling will affect future shoreline certification remains to be seen. In an email to Environment Hawai`i, Diamond noted that she has three other shoreline certification appeals in the same subdivision awaiting DLNR director Peter Young’s decision, and a fourth awaiting a ruling on standing. Diamond says Young has given over a year in extensions on one appeal for a property at Ha`ena Point. The landowner, as well as the North Shore `Ohana, Beau Blair and Diamond have appealed the shoreline certification, with the landowner wanting the shoreline to be more seaward based on the vegetation.
In the meantime, Diamond wrote, shoreline encroachment along Kaua`i’s North Shore is getting worse. Last January 6, Diamond, on behalf of the Kaua`i group of the Sierra Club’s Hawai`i Chapter, released an enforcement report describing several properties where landowners had planted and irrigated their properties without permits and criticizing the DLNR and Kaua`i county for failing to adequately enforce rules intended to protect shorelines.
Diamond says she never received a formal response to her report from the state or county, and that each violation case has worsened. For example, David Smith who had planted and irrigated naupaka to create an artificial shoreline, eventually removed his plants and sprinklers, but erected a fence seaward of the removed plantings. Last month, the DLNR proposed fining Smith $2,000 for erecting the fence in the Conservation District without a permit, and requiring him to remove the fence, but the Land Board, at its November 17 meeting, deferred action at the request of Smith’s attorney Bernard Bays (who also represents Stephens). Smith was also cited by the county, which recently adopted a no-tolerance policy for illegal shoreline structures, Diamond wrote.
“In each case there has been an escalation and a failure of all agencies to adequately enforce violations,” she wrote.
— Patricia Tummons
Volume 17, Number 6 December 2006