Shoreline and beach issues in Hawaii are a sensitive and often heated topic. It is natural that in an island state with 1,052 miles of coastline, people get passionate about beaches, especially when the economy relies in large part on images of sandy shores and beautiful ocean.
But the very things that make Hawaii beautiful, just as naturally, also attract people who want to live near those beaches and ocean. A recent story in the Honolulu Advertiser, Erosion hasn't slowed shoreline construction, highlights many of the competing concerns when the desire to protect the shoreline runs into people's homes: on one hand, the public is concerned about the perceived "loss" of sandy beaches, while on the other, the existing homes of shoreline property owners may be in danger, while other owners may be prevented by restrictive regulations from building upon their undeveloped property.
That is not a recipe for compromise, or even reasoned discourse. What I said in the July 2006 ABA Journal -- in a story about seawalls and property rights in Florida -- is just as true in Hawaii:
"It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news."
In Hawaii, all beaches are public up to the "high wash of the waves," as usually evidenced by the vegetation line. This differs dramatically from the rule in other states, where the public beach ends at the mean high water mark.
Several years ago, the Hawaii Supreme Court revisited the long-standing rule and "reinterpreted" a phrase ("ma ke kai") to mean upper reaches of the wash of the waves, not mean high water mark. The public-private boundary In Hawaii can therefore be much further mauka (inland) than in other states. And as shorelines erode, this public-private boundary can move and encroach further on private property. Note: as shorelines accrete, the public-private boundary should, conversely, move further makai (seaward). However, in 2003 the Hawaii Legislature enacted Act 73, which altered these age-old rules. For a related post on a circuit court's striking down of Act 73, go here.
Shoreline legal issues, like the shorelines themselves, are in flux. The State Board of Land and Natural Resources recently revised its administrative rules regarding the definition of shoreline for certification and setback purposes to conform more closely to the common law definitions established by the courts. These rules and other proposed regulations have not yet been challenged in the courts.
My Damon Key colleague Sat Freedman has posted a very good primer on the subject of Shorelines, Setbacks, & Seawalls, detailing the different definitions of "shoreline" (setback vs public-private boundary), how Hawaii's counties handle the administration of setbacks, and how seawall construction and other property protection measures may be impacted by restrictive regulation.
In the back-and-forth on the issue, the question of the property rights of the owners of shoreline property should not get pushed aside. The Fifth Amendment to the U.S. Constitution and article I, section 20 of Hawaii's Constitution provide that private property may not be taken for public use without just compensation. Property may be taken by overbearing regulation as well as outright confiscation (also known as a "regulatory taking" or "inverse condemnation" -- so yes, you have reached the right blog), and the issue of whether the government has gone too far and crossed the line between permissible regulation and confiscation is sure to arise again. The public often clamors for expansion of the public beach, with little to no concern shown for the property owners who are called upon to sacrifice their property upon the altar of the "public good" usually with no compensation.
Those fortunate enough to own beachfront property -- whether they are recent purchasers or long-time local residents (the law makes no distinction) -- must vigorously protect their rights to insure they alone are not forced to bear the cost of a desired public benefit.