My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.” It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the ocean), thus crowding onto the public beach. The editorial rightly recognizes:
Sooner or later, vegetation and waves converge, preventing people frommoving laterally along public land, which law defines as the highestwash of waves at high tide during the highest surf season, “usuallyevidenced by the edge of vegetation or by the line of debris left bythe wash of the waves.”
As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are public up to “the high wash of the waves,” and the high wash can “usually” be shown by the vegetation line or the debris line. So far, the editorial is on the mark. But then it goes somewhat off-track:
In 2006, the Hawaii Supreme Court, reaffirming decisions made in the1960s and 1970s, said the state, in determining shorelinescertification, could not use vegetation strictly as the marker sincethat encouraged landowners to use plantings to extend their propertyfurther makai, contrary to objectives and policies of state law.
Yes, technically the Supreme Court did say that about “shorelines” in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006), but the editorial mixes apples and oranges because that case did not involve the public-private shoreline boundary, only the definition of “shoreline” for purposes of measuring the shoreline setback (the no-build zone on beachfront property). The court in Diamond relied on the legislative policies established in the Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A to hold as it did, policies that the state is prohibited from exercising when it comes to actually acquiring property.
The shoreline certification process under the CZMA is not supposed to affect property rights or determine where the public may or may not access. If it does, then it becomes a taking for which the property owner is owed compensation. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), where the Court held a regulation which prevented an owner from building on his property was a taking when it wiped out economically beneficial use of the parcel. For an example of a taking of beachfront property, see this post about Hawaii’s Act 73, which purported to grab accreted land for the public without compensation.