HI Supreme Court: State Agency Must Consider “Historical Evidence” Of “The Upper Reaches Of The Wash Of The Waves” When Certifying Shorelines

Robert Thomas
Robert Thomas

BY ROBERT THOMAS – The Hawaii Supreme Court issued an option in Diamond v. Dobbin, No. SCWC-30573 (Jan. 27, 2014), a case about shoreline certifications that we’ve been following.

It’s a beach case, obviously, but not about ownership. 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 HAPA. 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 the Hawaii Administrative Procedures Act by engaging “in unwarranted fact finding and weighing of the evidence.”
The Supreme Court reversed, concluding that the BLNR must consider “historical evidence of the upper reaches of the wash of the waves” when certifying a shoreline.
We’ll have more after a chance to review in detail the long opinion. In the meantime, here are the cert briefing papers.