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COURTESY OF EARTHJUSTICE / SEPTEMBER 2004 This photo of Kahala Beach shows damp sand and debris past the vegetation line and a fence installed by a landowner, Earthjustice says.

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State’s shoreline rule
leads to lawsuit

The policy is causing the loss
of beaches, citizen groups say

Environmental groups are suing the state for what they call a failed policy that has led to greater erosion and loss of beaches statewide.

Earthjustice, on behalf of Public Access Shoreline Hawaii and Sierra Club, Hawaii Chapter, filed suit yesterday in Circuit Court against the state Board of Land and Natural Resources and its chairman, Peter Young.

The environmental groups want the state board to stop using the vegetation line -- and start using the so-called debris line -- to determine where the shoreline begins. This is the first time a lawsuit has challenged the state administrative rule.

All Hawaii beaches are public and the groups say that the state definition of shoreline encourages private landowners to extend the vegetation line on their property toward the water.

Beach erosion is occurring across the state, from Lanikai to the North Shore on Oahu, to Kaanapali on Maui and beaches on Kauai and Molokai, the groups contend.

"It's just a realization on the part of citizen groups that the problem has reached a crisis point across the islands," said Isaac Moriwake, attorney for Earthjustice, who said he walked Kahala Beach a few days ago during high tide only to find himself in thigh-deep water where a portion of the beach had vanished.

The shoreline marks the boundary between private land and public beach and also establishes the setback line for improvements to properties.

The Hawaii Supreme Court, in landmark decisions in the 1960s and 1970s, defined the boundary of the shoreline and public lands as the "upper reaches of the wash of the waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves." Public policy, according to the justices, "favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible."

The state board's shoreline certification rules contain extra language that considers the debris line only where no vegetation is present, Moriwake said.

In some areas where there is high seasonal surf, the debris line can go a dozen feet beyond the vegetation line, he said, which would provide greater protection to beaches and public access.

The board's policy "leads to problems with beach erosion and creates perverse incentive for landowners to grab as much public beach as possible by artificially inducing vegetation," he said.

Peter Young, chairman of the Board of Land and Natural Resources, said the board does not favor or rely solely on the vegetation line, but a combination of factors to determine the shoreline.

"Our approach is, let's make the right determination based on the evidence on the ground," Young said.

In the past nine months, Young said he has sought the help of specialists from Sea Grant Program at the University of Hawaii in more controversial applications to help identify where the shoreline ought to be. The board, Sea Grant and the Department of Accounting and General Services also have an agreement to bring in another expert on beaches to conduct site inspections and look for evidence on the ground.

But opponents are not convinced this approach is going to work.

"State mismanagement and private attempts to steal public beaches violate the public trust and end up destroying the resource for everyone," said Isaac Harp, current PASH president.

Young defended the policy, saying the board is careful to note when property owners plant vegetation beyond property lines to force a different measuring of the shoreline.

The board has also established a working group of representatives from other counties, the Sierra Club and Public Access. The group has scheduled meetings to discuss the certification process, Young said.

"It's not an idle thing, and it's certainly not appropriate to characterize that nothing's happening," he said.