oral Several justices (Justice Acoba, Justice Pollock) appeared quite hostile to the DLNR’s position. Their questions went beyond the usual “devil’s advocate” type questions where the questioner is testing a theory, or speaking through counsel to the other justices.
The Judiciary’s web site summarized the issues argued:
On January 11, 2008, Respondents Craig Dobbin and Wagner Engineering Services, Inc. filed a shoreline certification application with the Department of Land and Natural Resources (the DLNR) to certify the shoreline location on property owned by Dobbin. The DLNR approved the shoreline, and Petitioners Caren Diamond and Beau Blair appealed the certification to Respondent Board of Land and Natural Resources (the BLNR). The BLNR subsequently denied Petitioners’ appeal and certified the shoreline. Petitioners appealed the certification to the circuit court of the fifth circuit. The court held in favor of Petitioners, and remanded the case to the BLNR with instructions to give due weight to Petitioner’s evidence and to consider more than only the current year’s evidence of the highest wash of the waves in making its shoreline determination.
On remand, the BLNR issued an amended decision that certified the shoreline in the same location as its previous certification. Petitioners again appealed, and the court again held in favor of Petitioners, holding that the shoreline should be certified at the location proposed by Petitioners.
Respondents Dobbin and Wagner and the BLNR appealed to the ICA. The ICA reversed the court and affirmed the BLNR’s amended decision.
In their Application, Petitioners ask whether the ICA gravely erred in (1) articulating the wrong standard for deference to the BLNR, (2) failing to properly apply this court’s interpretation of the statutory definition of “shoreline,” and (3) concluding that the first appeal was rendered moot when the BLNR filed its amended decision.
More, once the court issues an opinion.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.
We’re predicting that the ___________ have Justices Acoba and Pollock. So they need at least one more, and it appears to us that they will get it.
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 apply Paul’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 prior recommendation 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?