▪ Good Fences Make Good Neighbors

If Robert Frost's poetic adage is true, is the inverse also correct?  Do bad fences make bad neighbors? 

Perhaps so, if this story (yet another article about the Diamond decision conflating the legal definition of "shoreline" for setback purposes with the public/private boundary "shoreline," which I posted about here, here, and here) is accurate:

Hawaii residents may be encouraged by the court ruling to insist that an eroding beach means the private landowner loses part of his property, as public property moves inland. But whether that's a good thing depends on one's point of view.

Dean Uchida, executive director of the Land Use Research Foundation of Hawaii, is worried that overzealous members of the public might try to claim public land if they see a debris line running through a back yard.

What does it say about the ability of the legal "fence" -- the defining line between public beaches and private property -- to provide certainty if some may think the law sanctions this type of behavior?  Not much.  Yet, the formulation of the boundary as an inchoate line seems to invite just this sort of action, since it inherently moves: the "upper reaches of the wash of the waves."

Another issue highlighted by the article is the erosion/accretion debate:

But if there is serious erosion, private land becomes public land, said Issac Moriwake, an attorney for Earthjustice, the nonprofit environmental law firm.

"It doesn't matter where the shoreline was a year ago or two years ago," Moriwake said. "The question is where is the shoreline now."

That might be correct, if the law -- and the ocean -- worked one way only.  But beachfront land accretes as well as erodes.  Age old legal traditions reconized this reality, and a shoreline property owner took the bitter (erosion) with the sweet (accretion), losing property when it eroded, but gaining it when accreted. 

But as I posted here, the Hawaii Legislature in Act 73 attempted to overthrow that tradition, instead legislating that a shoreline property owner could not gain land by accretion, and leaving untouched the rule that the owner lost eroded property.  The circuit court invalidated the legislation as unconstitutional, and an appeal is pending, so it looks like Diamond won't be the last case about shorelines in the headlines.