▪ "Artificial" Vegetation and the Shoreline Boundary

The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of "artificial" vegetation to expand private property onto the public beach:

The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,

Through a resolution, five of seven council members threw their support behind a “weed-the-beach” program to remove “artificially induced vegetation.”

The council and its supporters view the legislation as a way to protect public access, but some beachfront owners have said the plantings would help deter erosion of the beach in front of their properties.

An official version of the resolution has not yet been posted on the County's web site, but the fact that the term "artificially induced vegetation" is in quotes leads me to believe that's the language used in the reso.  There are a couple of troubling aspects if so. 

First, the idea that the vegetation line defines the "shoreline," and the boundary between private property and the public beaches.  It does not.  The Hawaii Supreme Court held:

according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves.

The vegetation line -- like the debris line -- is only one possible indicator of the location of the "upper reaches of the waves," not the demarcation line itself.  Thus, if the upper reach is more inland than the vegetation line, then the public beach extends further inland.  By the same token, planting vegetation, especially if it is done on land mauka of the upper reach, seems well within the private property rights of the owner.

Second, the notion that we can distinguish between "artificially induced" vegetation and other types of vegetation seems an impossible standard to apply over time.  I suppose the opposite of "artificially induced" is "naturally induced," but it's hard to see how such a distinction could be a useful guide, especially when indigenous naupaka -- a plant whose "seeds sprout readily and seedlings grow moderately quickly" is involved.  Will there be a "fruit of the poisonous tree" doctrine when it comes to such vegetation if it can be shown that vegetation was planted by human hands, even if the portion that extends past the upper reach spread "naturally?"  The Hawaii Supreme Court ventured into this topic last year in Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (2006), a case which I posted about here.   

Full story here.  Other posts on shoreline public/private boundary here, on the impossibility of the "artificial" vegetation standard here, and on the Diamond case here.