Earthjustice Draws Line in the Hawaiian Sand

Danny Davis, 3L, University of Mississippi School of Law

Earthjustice, on behalf of Public Access Shoreline Hawaii (PASH) and the Hawaii Chapter of the Sierra Club, drew a line in the sand on July 25, 2005. Earthjustice has filed suit in Hawaii’s First Circuit Court against the Board of Land and Natural Resources (BLNR) seeking a judicial declaration invalidating BLNR’s definition of ‘shoreline’ in its shoreline certification rules.1 At issue: where do private property rights on the shoreline end and public access begin?

All coastal states recognize the right of the public to access coastal waters and some have granted the public rights to areas of the beach. Under the public trust doctrine, states hold lands underneath navigable waters in trust for the benefit, use, and enjoyment of all citizens. The extent of public rights under the doctrine varies by state. Some states are “high-water states” and grant the public rights seaward of the mean high water mark. Others states use low-water mark as the landward boundary of public access rights.

Despite a long tradition of public access, population growth and tourism in Hawaii has increased private development of beachfront property and the number of public access disputes. In 1968, the Hawaii Supreme Court held that the boundary of the shoreline should be established as “the upper reaches of the wash of the waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves.” The definition of “shoreline” in Hawaii’s Coastal Zone Management Act is very similar to the definition developed by the Supreme Court. Haw. Rev. Stat. § 205A-1 defines 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.”

The BLNR has responsibility for promulgating rules and regulations governing how close a private landowner can build to the ocean. The BLNR shoreline certification rules define ‘shoreline’ as “the upper reaches of the wash of the waves, other than storm or tidal 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 where there is no vegetation in the immediate vicinity, the upper limit of debris left by the wash of the waves.”2

PASH claims that the BLNR’s definition conflicts with the definition of ‘shoreline’ set forth by Hawaii’s Supreme Court and Hawaii’s shoreline protection statute by giving a “blanket preference for the vegetation line” because the debris line is used only if there is no vegetation line in the immediate vicinity. PASH and Earthjustice argue that this focus on the vegetation line encourages private property owners to appropriate public beaches by artificially extending the vegetation line through plantings and irrigation systems.
Many groups have worked with the Hawaii Legislature to come up with a solution to the shoreline problem, but those efforts have stalled in the Legislature. Earthjustice attorney Isaac Moriwake stated he hopes this issue will be settled amicably, but PASH and Sierra Club are willing to move forward with the suit if needed.3

Endnotes
1. Complaint at 2-3, Public Access Shoreline Hawaii v. Board of Land and Natural Resources, on file with author.
2. Haw. Admin. R. § 13-222-2.
3. E-mail from Isaac Moriwake, Staff Attorney, Earthjustice, to Danny Davis, Research Assistant, Sea Grant Law Center (August 29, 2005) (on file with author).