Robert Thomas
Robert Thomas

BY ROBERT THOMAS – The Hawaii Supreme Court has accepted certiorari and agreed to review the Intermediate Court of Appeals’ unpublished memorandum opinion in Diamond v. Dobbin, No. 30572 (Aug. 31, 2012). The Supreme Court’s order is here.

It’s another beach case, this time involving a shoreline certification. Shoreline certifications approved by the State Department of Land and Natural Resources are used as the baseline from which to measure building setbacks on littoral parcels, and do not involve the boundary between public and private property on beaches. The DLNR certified the shoreline on a Kauai parcel, and two nearby residents who claimed the shoreline was further mauka (landward) administratively appealed to the Board of Land and Natural Resources. The Board rejected the appeal and approved the certification, and the two neighbors appealed to the circuit court under the Hawaii Administrative Procedures Act.

The circuit court concluded the BLNR’s findings of fact were wrong, and vacated the certification. The property owner who sought the certification appealed to the ICA, which reversed, holding that the circuit court exceeded its authority under HAPA by engaging “in unwarranted fact finding and weighing of the evidence.”

The Supreme Court’s order does not provide any details about what issues the court is considering. But here are the briefs submitted on the cert application:

The Application states three questions (and we’re paraphrasing here):

  • Whether the ICA “gravely erred”* because it did not applyPaul’s Elec. Services, Inc. v. Befitel, 104 Haw. 412, 91 P.3d 494 (2004), a case clarifying the degree of deference courts owe to administrative agency determinations? Here, a determination of the location of the certified shoreline.
  • Did the ICA err interpreting and applying Diamond v. State of Hawaii, 112 Haw. 161, 145 P.3d 704 (2006) with respect to the BLNR’s determination of the location of the certified shoreline?
  • Was the circuit court’s judgment mooted by the BNLR filing an amended decision?

Here’s the crux: the petitioners are arguing that the courts owe little or no deference to the BNLR’s shoreline determination in this case (and presumably others) because it is based on a:

“preference” for the use of the “current” season’s high surf over other relevant evidence of the upper reaches of the wash of the waves, including the use of historical evidence, and in this case, the State surveyor’s priorrecommendation of October 19, 2005, conflicts with the manifest purpose of the state it seeks to implement…

App. for Cert. at 9 (emphases original). So in the petitioners’ view, because the BLNR arbitrarily and capriciously has a preference for using one measurement, the circuit court was correct when it reweighed the evidence in the agency record, because that is more consistent with the statute than the BLNR’s “preference.” Boy, talk about burying your lede.

As mere interested observers on this one, we hope the court uses this case as an opportunity to at least clarify that “certified shorelines” under state statutes is a completely different ball of wax than the boundary between public and private property on littoral land, even though the defintions are awfully similar and thus often confused. We’ll also see whether the court imposes some order on the certification process, which is, as this case illustrates, unnecessarily time-consuming and confusing, given it is merely a baseline from which to measure building setbacks. It really does not determine public rights, and is more about protecting the property owner’s structures from erosion.

Or will this be yet another decision to add to Professor Callies’ list?

Note: the Hawaii Supreme Court’s discretionary docket is primarily filled with cert review cases in which the standard of review asks whether the ICA “gravely erred.” That’s very broad language, and as discussed at arecent HSBA Appellate Section session, this means the lower court really, really went off the rails, or, more importantly we suspect here, that the Supreme Court is really, really interested in the issue for whatever reason (as one retired justice said — and again, we’re paraphrasing from memory here — it’s her or his pet issue).

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.