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

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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.



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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.