Judge rules for broader public shoreline
A decision by Circuit Court Judge Kathleen Watanabe has invalidated the state’s current approach to determining the public shoreline.
In an order signed April 6, Watanabe found the state had improperly relied upon cultivated vegetation and current, rather than historical, wave wash data when setting the shoreline for a North Shore Kauai lot now owned by Craig Dobbin.
The decision stemmed from a long-standing dispute over the Wainiha lot’s certified shoreline, which is used to determine how far a house will be set back from the beach.
In signing the order, Watanabe struck down a certification based on a shoreline boundary that the state itself had rejected five years ago. North Shore residents Caren Diamond and Beau Blair, represented by attorney Harold Bronstein, appealed the certification to the Board of Land and Natural Resources. When BLNR Director Laura Thielen denied their appeal, they went to the Circuit Court, where the judge vacated the certification.
“The judge said, in effect, your decision is wrong and you have to go back and do it the right way,” Bronstein said. “She’s also saying, interpret the law correctly.”
Watanabe found that the BLNR had acted arbitrarily and/or capriciously in dismissing as “anecdotal and/or unreliable evidence” the extensive photographs and other materials Diamond and Blair compiled over eight years to document the highest wash of the waves on Dobbin’s lot.
The Hawaii State Supreme Court previously affirmed, in a case Bronstein argued on Diamond’s behalf, that the public shoreline extends to the highest seasonal wash of the waves, which is often determined by the debris line or edge of vegetation.
Watanabe further affirmed that intentionally cultivating vegetation for the purpose of creating an artificial line undermines the intent of state law, which is to give the public as much use of the beach as is reasonably possible.
Diamond and Blair had argued that the cultivated vegetation “prevents and/or hinders the observation of the true debris line that evidences the upper reaches of the wash of the waves at high tide during the season of the year in which the highest wash of the waves occurs.”
The judge’s decision also undermines the state’s standard practice of using a “single-year snapshot,” or current conditions only, to set the shoreline. Watanabe found that interpretation of the law to be “arbitrary, capricious and/or characterized by an abuse of discretion” because it “conflicts with and/or contradicts the purpose and intent” of the state shoreline statute.
Diamond and Blair maintained that using the “single-year snapshot” approach fails to take into account significant variations in wave heights that can occur over several years.
Bronstein said the state’s actions flew in the face of Diamond v. State of Hawaii, prompting the shoreline certification appeal.
“I call it dissing Diamond, and I don’t mean the person, but the decision,” Diamond said.
“This is going to happen on a daily basis, and people have gotta push them [BLNR] to interpret the law in the right way,” Bronstein said.
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