Honolulu’s two major dailies have produced front page stories about the Diamond shoreline opinion (detailed posting here).
The first — “Ruling sparks beach debate” — understands the difference between defining “shoreline” for certification purposes under the CZMA, and the “shoreline” for ownership purposes:
ENVIRONMENTALISTS have asserted that a Hawaii Supreme Court ruling this week opens public beach access and prevents private property owners from encroaching.
But private property advocates caution that the ruling should not be interpreted that broadly and does not affect beach access.
But the other article — “Ruling upholds shoreline access” — does not distinguish between shoreline definition for setback certification purposes, and the definition for the public/private boundary purposes:
The Hawai’i Supreme Court, in a landmark ruling that resolves three decades of conflict over shoreline property, has clearly ruled that the public beach must be established as wide as is reasonably possible.
As I mentioned yesterday, although the language of the certification statute tracks the language of the common law boundary cases, the court in Diamond could not and did not consider the issue of boundary or public access. Any application of this case to boundary issues is what lawyers call “dicta.” That’s a fancy way of saying that any discussion about access is only an aside by the court, not a rule of precedent that must be followed in future cases.
Future cases could contrast, for example, the differences between the policies underlying the CZMA’s shoreline definition, with the common law traditions and history of the term “ma ke kai” that on many parcels defines the boundary between private property and the public beach. The CZMA, after all, cannot be a tool to “expand” the public beach without compensation.
