New, naturally formed beach land above the high-water mark in Hawaii belongs to the public, not adjoining property owners, the Intermediate Court of Appeals has concluded.

In a ruling Wednesday, the court upheld provisions of a 2003 law that declared that future land formed through accretion belonged to the state. The judges said, however, that oceanfront private property owners could claim land formed before the law took effect on May 19, 2003.

The split nature of the decision gave each side something to celebrate.

“;This is wonderful news,”; said state Rep. Cynthia Thielen (R, Kailua-Kaneohe Bay), who pushed for the law in response to concerns from local residents that they were losing precious beach land to private homeowners. The legislation, Act 73, passed unanimously and was signed by Gov. Linda Lingle.

“;On Kailua Beach, private landowners were really taking away beach area from the public,”; Thielen said. “;Not many, but there were enough to make us concerned. When the beach expands and newly accreted land appears, that's the area that we must preserve for the public, and I'm very gratified that the Intermediate Court of Appeals agreed with us.”;

In Hawaii the public beach is defined as the shoreline to the highest wash of the waves. Before Act 73 was passed, oceanfront property owners in Hawaii could register ownership of accreted land above that high-water mark if they proved it had existed for 20 years. The new law changed that, declaring that such land belonged to the state unless it was private property that had previously eroded.

Portlock oceanfront homeowners in Hawaii Kai sued the state in 2005, claiming the law represented an unconstitutional “;taking”; of their property. The case, Maunalua Bay Beach Ohana 28 et al. v. the State of Hawaii, was brought by three nonprofit corporations formed by the homeowners as a class-action suit on behalf of all oceanfront private property owners.

The homeowners prevailed at Circuit Court, and the state then took the case to the Intermediate Court of Appeals. The appeals court, in its ruling, said that “;any claims that plaintiffs may have to future accretions are purely speculative”; and do not constitute a vested right. But the judges said the law did take away private landowners' rights to existing accreted land and that the state could owe damages.

Paul Alston, attorney for the landowners, welcomed the court's decision regarding existing accreted land and said yesterday he planned to appeal the portion of the ruling that focused on future land formation.

“;We were very pleased that the court agreed with us that the state illegally took private property when it passed the statute,”; he said. “;The ball is really in the state's court. The state can either pay for the land, or they can abandon the statute.”;

The appeals court sent the case back to Circuit Court to determine whether plaintiffs had accreted lands that existed when Act 73 was enacted, and if so, what damages they incurred. Alston said the plaintiffs had substantial amounts of accreted land, and because it is a class-action suit, the ruling applies to all oceanfront property owners.

The attorney general's office did not return calls for comment yesterday as most state offices were closed. But Thielen said the landowners might have a tough road ahead in pursuing their claims against the state for land existing as of 2003.

“;It will have to play out in the courts, and there is quite a burden of proof on the landowners,”; she said. “;Even if they were able to, the amount of compensation would be minimal because it's not buildable land. That accreted land would either be in the conservation district, or it would be within the shoreline setback.”;

“;For the public, the value is immeasurable in terms of access to the beach. But to the private property owner, compensation would be minimal.”;

In its ruling, the appeals court cited a state Supreme Court decision that held that new land created by volcanic eruption belonged to the people of Hawaii, to be held in public trust by the government. It also noted that the state Constitution provides that “;all public natural resources are held in trust by the state for the benefit of the people.”;

All three judges who heard the case—Chief Judge Craig Nakamura and Associate Judges Daniel Foley and Corinne Watanabe—concurred on the main points of the decision.

Kailua resident Karen Simmonds, who advocated for Act 73, called the decision “;a victory for the public.”; “;The court recognized that it's important that we protect our natural resources and hold new beach land in the public trust,”; she said.

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