▪ Shoreline Definition History in a Nutshell

The Diamond shoreline decision is considered in this piece on the Advertiser's op-ed pages.  It does a very good job of explaining the historical context of the legal definitions of shoreline:

The court essentially endorsed a concept originally created by the court led by Chief Justice William Richardson in the late 1960s and 1970s. Richardson, part Hawaiian, believed that the law in areas such as shoreline access or use of natural resources should look to Hawaiian tradition and practice as well as western law.

As the court said in the 1995 PASH decision, certain "western concepts" of property are "not universally applicable in Hawaii."  The piece continues:

In three famous decisions, the Richardson case affirmed that theory: Ashford (1968), Sotomura (1973) and Zimring (1977). While the facts and details of the three cases were different, the basic principle was the same: In contested cases, control of beachfront property tilts toward the public rather than the private landowner.

This was not an entirely popular position. Justices such as Masaji Marumoto argued that basing legal opinions on theories about Hawaiian practices and oral history was a dangerous and haphazard approach.

But the philosophy held.

Where this analysis goes slightly off-track is the conflation of of the Ashford-Sotomura-Zimring definition of "shoreline" for boundary purposes with the CZMA definition of "shoreline" for setback purposes.  The boundary issue was not before the court in Diamond, and the court held only that the agency was not following the CZMA mandates (the language of which was derived from Ashford, hence the confusion).  This rule of decision is not precedent for any furture boundary case, which will be decided on its own facts and the common law, not the CZMA.

    

Comments

[Walt Harvey]

Many thanks for the shoreline clarification.
This is a source of confussion for homeowners and prospective buyers and real estate professionals. Your explanation is appreciated!