Two Recent Law Review Articles (Water Law and Shoreline Issues)

Two recent U. Hawaii Law Review articles worth mentioning.  Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review.  If you don't have a UHLR subscription, you should. It's only $30 per year for US addresses.

Water Regulation, Land Use and the Environment
David L. Callies and Calvert G. Chipchase; 30 U. Haw. L. Rev. 49 (Winter 2007)

In this article, the authors assert that the "public trust" doctrine, as misconstrued by the Hawaii Supreme Court, has distorted water law and the land use process:

Problems arise in the planning process when water and non-economic uses of water are given a sacrosanct status that abjures private use for the benefit of "the public." This is increasingly happening under flawed interpretations of the public trust doctrine.

p. 49 (citing In re Water Use Permit Applications (Waiahole), 84 Haw. 97, 9 P.3d 409 (2000); In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004); In re Water Use Permit Applications, 113 Haw. 52, 147 P.3d 836 (2006)). The article continues:

Many courts have forgotten that the jus privatem is as much a part of the public trust doctrine as the jus publicum. Certainly water should be available for future use, but is also should be readily available for current use. When the balance between current private and abstract or future public needs is distorted, water use and availability of water becomes the primary, or even sole, consideration in the process. This leads to the preservation of water for such uses as "minimum stream flows" and non-beneficial use by selected segments of the public and, ultimately, an elitist, communitarian regime that bears no relationship to either traditional notions of water rights or constitutionally protected rights in property.

Id. The authors analyze the multi-layered land use planning laws in Hawaii, the state Water Code (Haw. Rev. Stat. ch. 174C), and the Hawaii Supreme Court's extension of the public trust doctrine beyond navigation and commerce to the promotion of reasonable and beneficial use of water resources in Waiahole.  p. 70.  The article also discusses how Arizona, Colorado, and New Mexico regulate their water resources, and what lessons these jurisdictions may provide for Hawaii.  pp. 77-92.

More Than a Line in the Sand: Defining the Shoreline in Hawai'i After Diamond v. State
Simeon L. Vance and Richard J. Wallsgrove; 29 U. Haw. L. Rev. 521 (Summer 2007)

In this article, the authors analyze the differences in the various definitions of the "shoreline" under Hawaii law, and the Hawaii Supreme Court decision in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006) .  As detailed in this post about the Diamond case, the term "shoreline" is used to define both the boundary between public and private property as well as the baseline for measuring the shoreline setback (a no-build zone on beachfront property).

The difference between a  certified shoreline  and a  seaward boundary line  has become a confusing and potentially divisive issue. Confusion is predictable because the definition of  shoreline  for certification purposes is essentially identical to the definition Hawai'i courts have used to determine property boundary lines. Despite their similarity, however, the two lines  are not necessarily the same because their purposes, the impacts and the processes for determining these  lines' are uniquely and significantly different.

The most critical of these differences is that shoreline certifications are not designed to determine ownership.  Instead, the line of ownership dividing public and private coastal property is the seaward boundary. Markedly different from the shoreline certification process outlined above, determinations of seaward boundary lines often take the form of quiet title actions, eminent domain actions, or land court petition actions.  The state's responsibility to uphold the public trust and preserve its interest in property triggers the need for  a more rigorous and cautious approach.  In these situations, the state does not rely on shoreline certifications, but conducts its own survey in recognition of the "importance of lateral [shoreline] access over state-owned lands for recreation, native gathering practices and other purposes."

p. 532 (footnotes omitted).  The article is a good introduction to Hawaii's unique approach to shoreline law, and a worthy read.  And I'm not just saying that because it cites several posts from this blog as authority (See, e.g., notes 92, 146, 179, and 180, and accompanying text).