J E S S E K . S O U K I , F I R S T D E P U T YD E P A R T M E N T O F L A N D A N D N A T U R A L R E S O U R C E S , S T A T E O F

H A W A I IJ U L Y 7 , 2 0 1 4

WHERE IS SHORELINE?

S TAT U T E S A N D A D M I N I S T RAT I V E R U L E S

SHORELINE CERTIFICATION PROCESS

HRS § 205A-1SHORELINE DEFINITION

• ‘Shoreline’ means • 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 the vegetation growth, or • the upper limit of debris left by the wash of the waves.

HRS § 205A-42  DETERMINATION OF THE SHORELINE

• Board of Land and Natural Resources (“BLNR”) Adopts Rules• procedures for determining a shoreline• appeals of shoreline determinations

• Valid for 12 months• except where the shoreline is fixed by government

approved artificial structures

• Public notice of accepted application• Public comments submitted in writing 15 days

from public notice

HAR CH. 13-222SHORELINE CERTIFICATIONS

• Implements HRS § 205A-42• Application is accepted• 90 days to make a determination• State land surveyor reviews application and

supporting materials• Public Comments• Field Survey• Appeal

H AWA I I A P P E L L AT E O P I N I O N S

SEMINAL SHORELINE CASES

IN RE APPLICATION OF ASHFORD, 50 HAWAII 314 (1968).

• “Ma ke kai” means “along 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 waves[.]”• Testimony from witnesses living in the area was

relevant to determining the shoreline property boundary.

COUNTY OF HAWAII V. SOTOMURA, 55 HAW. 176 (1973).

• “[P]ublic policy... favors extending public use and ownership to as much of Hawaii's shoreline as is reasonably possible.”• “[W]here the wash of the waves is marked by

both a debris line and a vegetation line lying further mauka[,] the presumption is that the upper reaches of the wash of the waves over the course of a year lies along the line marking the edge of the vegetation growth.”

DIAMOND V. BLNR, 112 HAW. 161 (2006)

• Vegetation will not always prevail over the debris line.• Where the shoreline is marked by both a

vegetation line and a debris line, the line further mauka is used to locate the shoreline.• “Vegetation growth” does not include salt-tolerant

plants planted on a property for the purpose of shoreline demarcation, nor the natural expansion of such growth.• A shoreline determination is a contested case

hearing.

THE ROAD TODIAMOND V. DOBBIN , 319 P. 3D 1017 (2014)

FACTS CONSIDERED

• 2005 Application• Petitioners participated in site inspection• Debris line further mauka than shown on map (near the

mauka edge of naupaka)• Application rejected

• 2008 Application• Petitioners participated in site inspection• Decision: “There is no evidence that the wash of the

waves has extended that far mauka [i.e., to the edge of naupaka] in the past two winters, especially the most recent winter season.”

• Shoreline set at top of dune.

ADMINISTRATIVE APPEAL

• June 27, 2008, Petitioners filed a Shoreline Certification — Notice of Appeal• Petitioners argued, “[e]ach year, depending upon

the size and direction of the swells, the winter waves repeatedly wash well into and beyond the currently proposed shoreline for [the property].”• Petitioners provided photographic evidence.• Department of Land and Natural Resources

(“DLNR”) denied the appeal and certified the shoreline—at top of dune.

ADMINISTRATIVE APPEAL TO CIRCUIT COURT – NUMBER 1

• The court vacated the BLNR's initial Decision• Remanded to the BLNR with • “specific instructions to appropriately consider and give

due weight to [Petitioners'] proposed evidence and to correctly apply the applicable statutes, case law and administrative rules....”

• Dobbin appealed.

BLNR AMENDED DECISION

• Based on Circuit Court’s Remand• Added Findings of Fact• Back of the frontal dune, was identified during site visit in

2005 as shoreline• 2005 shoreline was considerably further mauka than the

proposed shoreline location in 2008 application• However, State Surveyor and DLNR staff also noted that

there was no evidence that the wash of the waves had extended that far mauka in the past two winters, especially not during the immediately preceding winter season

• Certified shoreline in the same place.

COMPETING FACTS

Petitioners’ evidence

• Testimony did not refer to specific observations of the shoreline

• It is not possible to ascertain from photographs what they were purported to portray

• Testimony did not include dates when specific photographs were taken or who took the photographs

Respondents’ evidence

• Testimony that vegetation growing along the shoreline was not planted and "induced”

• Affidavits current and prior owners all denied planting

• Facts presented by DLNR and State Surveyor for determining the location of the shoreline for shoreline certification purposes pursuant to HRS § 205A-1 and HAR § 13-222-2

APPEALS

• Administrative Appeal to Circuit Court – Number 2• BLNR’s determination of the shoreline location was

entitled to deference• The BLNR argued that less weight should be given to

historical evidence• Circuit Court Vacated and Reversed BLNR

• Intermediate Court of Appeals – Circuit Court Cases Consolidated• ICA Agreed with BLNR• Petitioners Appealed to Hawaii Supreme Court

DIAMOND V. DOBBIN, 319 P. 3D 1017 (2014)HAWAII SUPREME COURT

HISTORICAL EVIDENCE MUST BE CONSIDERED BY BLNR

• BLNR must consider all historical evidence in making its shoreline determination• BLNR testified that is looked back 2 winters• Petitioners noted 8 years• The trial court noted 12 years

• Holding• Ashford, “reputation evidence by kama`aina witnesses”• “[T]he ultimate determination of the upper reaches of the

wash of the waves at high tide” not solely for experts.

MULTI-VARIABLE APPROACH IS NOT STATUTE OR CASE LAW

• Shoreline type, location, exposure, including “debris lines, vegetation lines, wet lines, artificial structures, dune crests, erosion scarps, salt deposits, discoloration, and saltwater-dependent biota”

• Presence and effect of artificially induced vegetation• Information from those with personal knowledge and

familiarity of the area• Holding• Where the shoreline is marked by both a vegetation line and a

debris line, the line further mauka is used to locate the shoreline• The boundary markers for the shoreline must be “‘easily

recognizable’” and “‘known to the people living thereon or in the neighborhood.’” Sotomura

VEGETATION GROWTH

• “Vegetation growth" does not include • Salt-tolerant plants planted on the property for the

purpose of shoreline demarcation, nor • The natural expansion of such growth

• Holding• BLNR must consider whether the vegetation growth is

“naturally rooted and growing”• If the vegetation is not “naturally rooted and growing,”

where is the debris line?

WITNESS TESTIMONY

• Not in the form of an affidavit or declaration• Not attested to• No context• No information on document preparers’ expertise• Holding• “[A]ny oral or documentary evidence may be received”

unless such evidence is "irrelevant, immaterial, or unduly repetitious.” HRS § 91-10.

• Testimony need not be from an expert.• Reputation evidence by kama`aina witnesses may be

used.

POLICY IMPLICATIONS

• Science Based Decision Making• Natural Infrastructure• Contested Cases• Agency Discretion• Public vs. Private