{"id":323,"date":"2014-04-01T23:10:10","date_gmt":"2014-04-01T23:10:10","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=323"},"modified":"2014-04-01T23:10:10","modified_gmt":"2014-04-01T23:10:10","slug":"high-court-sides-with-activists-in-kauai-shoreline-certification-case","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=323","title":{"rendered":"High Court Sides with Activists in Kaua`i Shoreline Certification Case"},"content":{"rendered":"
\n

The state Board of Land and Natural Resources did pretty much everything wrong when it approved Wainiha, Kaua`i property owner Craig Dobbin\u2019s certified shoreline in 2010.<\/p>\n

That\u2019s the impression one gets from reading the January 27 Hawai`i Supreme Court decision in a case brought against the Land Board, Dobbin, and Dobbin\u2019s consultant, Wagner Engineering Services, Inc. by area residents Caren Diamond and Beau Blair.<\/p>\n<\/div>\n

\n

Blair and Diamond had requested a contested case hearing on the certification in 2008, arguing that the shoreline had been manipulated with salt-tolerant vegetation. Naupaka had been planted and artificially induced to grow into the beach area, they claimed. But in its decision and order in the case, the Land Board gave short shrift to evidence and testimony they submitted explaining how the property had been altered and where the waves historically washed in that area.<\/p>\n

Diamond and Blair appealed to the 5th Circuit Court, which found that the Land Board had arbitrarily and capriciously ignored the historic evidence presented by the two women. Circuit judge Kathleen Watanabe remanded the case back to the Land Board, which issued an amended decision in 2010. In that decision, the board again dismissed Blair\u2019s and Diamond\u2019s evidence and set the shoreline exactly where it had in 2008.<\/p>\n

Blair and Diamond appealed to the Intermediate Court of Appeals, which sided with the Land Board and reversed the lower court\u2019s ruling.<\/p>\n

When the Supreme Court heard oral arguments last year on the Land Board\u2019s 2010 amended decision, it was clear from questioning that several justices were not impressed with the way the board had handled the case. In its decision, written by departing Associate Justice Simeon Acoba, the court concluded that rather than Blair and Diamond\u2019s evidence being merely anecdotal \u2013 as the Land Board had characterized it \u2013 in fact, \u201cthe only substantial evidence of a historic nature were the years of observations described in the declarations of Diamond, Blair, and [Barbara] Robeson (another area resident), and the record fails in any way to controvert Petitioners\u2019 historical evidence.\u201d<\/p>\n

The Land Board must now revisit the case. The court has directed the board to set the shoreline at the debris line or vegetation line, whichever is mauka.<\/p>\n

Given the new law passed last year requiring the state to keep public transit corridors along the beach clear from manipulated vegetation, as well as the Supreme Court\u2019s harsh criticism of the board\u2019s past actions, it\u2019s unlikely the board will set the shoreline at the same place on its third try.<\/p>\n

The following is a summary of the court\u2019s major findings:<\/p>\n

\u2018Post Hoc Justification\u2019<\/i><\/b><\/p>\n

When the Land Board first approved Dobbin\u2019s certified shoreline in 2008, it stated in its Decision and Order that it had considered only the current year\u2019s wash of the waves and not any historic evidence. However, after the 5th Circuit Court remanded the case back to the board, directing it to consider all historic evidence, the board suddenly claimed that historic evidence offered by DLNR staff regarding the wash of the waves during the two preceding years had been considered the first time around.<\/p>\n

The Supreme Court did not buy that claim and argued that even if the board had considered some historic evidence, it did a poor job of it.<\/p>\n

\u201cAlthough it removed from the findings of its initial decision discussing only the \u2018current year\u2019s\u2019 wash of the waves, the BLNR\u2019s discussion of historical evidence in its amended decision appears to be a post hoc justification of its earlier decision,\u201d Acoba wrote.<\/p>\n

Considering just two years worth of wave evidence and excluding eight years worth of photographic and testimonial evidence from Diamond and Blair failed to meet the 5th Circuit Court\u2019s order, Acoba continued.<\/p>\n

\u201c[T]he [5th Circuit] Court instructed BLNR to consider all historical evidence, rather than just the historical evidence the BLNR felt was appropriate,\u201d he wrote, adding that a 1968 Supreme Court decision (Ashford) requires agencies to allow \u201creputation evidence by kama`aina witnesses\u201d when determining the public-private shoreline boundary.<\/p>\n

Vegetation Growth<\/i><\/b><\/p>\n

Chapter 205 of Hawai`i Revised Statutes establishes a policy prohibiting private property owners \u201cfrom creating a public nuisance by inducing or cultivating the private property owners\u2019 vegetation in a beach transit corridor.\u201d And Hawai`i Administrative Rules require vegetation growth to be \u201cnaturally rooted and growing\u201d for it to be used to determine a shoreline, the court stated.<\/p>\n

The Land Board\u2019s 2010 decision to locate the shoreline at a dune crest located on the makai end of the naupaka is \u201cbereft of any indication of how the policies of [Chapter 205] have been enforced,\u201d reflecting a disregard of the standards set forth in three previous Supreme Court cases (Diamond I, Sotomura<\/i>, and\u00a0Ashford<\/i>). And Dobbin\u2019s naupaka was not \u2018naturally rooted and growing,\u2019 the court found.<\/p>\n

The Land Board had wholly adopted Dobbin\u2019s and Wagner\u2019s argument that the sprinklers on the property were parallel to or faced away from the naupaka and were never intended to water it. However, Acoba wrote, \u201c[i]f the sprinklers\u2019 action actually resulted in watering the vegetation as a result of wind or other natural factors, then it is of no import whether the sprinklers were not \u2018intended to irrigate\u2019 the vegetation.\u201d<\/p>\n

Locating a shoreline where salt-tolerant plants had been grown and were preventing a debris line from forming at the high wash of the waves is contrary to case law and to the legislative purpose of Chapter 205, HRS, he continued.<\/p>\n

Expert Testimony<\/i><\/b><\/p>\n

The court also took the Land Board to task over its dismissal of testimony by Limahuli Garden and Preserve director Chipper Wichman on behalf of Diamond and Blair. Wichman, a lifelong resident of the area, had submitted a letter to the Land Board describing his knowledge of the inappropriate use of salt-tolerant vegetation such as naupaka by private landowners.<\/p>\n

During the first contested case hearing, the Land Board had accepted the letter as expert testimony. However, in the second hearing, the board determined that Wichman\u2019s letter was not in the form of a declaration or affidavit, lacked context, and that it was unclear \u201cwhether the person who allegedly authored the document is an expert or what his expertise might be, if any.\u201d<\/p>\n

First, the court found, state law did not require Wichman\u2019s testimony to be submitted in the form of a declaration or affidavit. Second, it did not matter whether Wichman was an expert in anything. His letter, which noted that he had surfed, fished, and dived in the Wainiha-Ha`ena area all his life \u2013 and that he was the Limahuli Garden and Preserve director \u2013 should have been considered kama`aina witness testimony, Acoba wrote.<\/p>\n

(In a footnote, the court pointed out that the Land Board had accepted Wichman\u2019s letter as expert testimony in the first contested case hearing. \u201cThus, the notion [in the Land Board\u2019s decision in the second contested case] that Wichman\u2019s testimony was not \u2018expert\u2019 appears to be a post hoc justification to disregard that testimony altogether,\u201d the court wrote.)<\/p>\n

Photos, Declarations<\/i><\/b><\/i><\/p>\n

With regard to the historical evidence Blair and Diamond had submitted, the court pointed out instances where the Land Board just plain got its facts wrong. For example, the board disregarded Blair\u2019s photos because her accompanying declaration \u201cdid not contain any information as to the dates when specific photographs were taken or who took the photographs.\u201d The board also contended that it was impossible to determine what her photos were meant to portray.<\/p>\n

Acoba pointed out that Blair\u2019s declaration in fact stated that a photo in her Exhibit E \u201cwas taken on October 19, 2005 and shows Chris L. Conger [a former DLNR staffer] identifying the location of the shoreline.\u201d He also noted that some of her photos were date stamped and that the Land Board even acknowledged that in its 2010 decision.<\/p>\n

Blair\u2019s declaration also stated that the photos in her exhibits G through N showed the high wash of the waves on Dobbin\u2019s property, Acoba wrote.<\/p>\n

\u201cThe BLNR apparently rejected altogether Petitioners\u2019 evidence of the location of the shoreline, thereby ignoring substantial historical evidence,\u201d he wrote.<\/p>\n

The board was nowhere near as critical of evidence submitted by Dobbin and Wagner, Acoba continued. For example, the board included in its decision a finding that the irrigation system on the property was installed several feet from the naupaka and that the sprinkler heads were aimed parallel to or away from it. However, Acoba wrote, the decision did not explain why that finding \u2013 based on an affidavit of former property owner Steve Moody submitted by Dobbin and Wagner \u2013 was more persuasive than Diamond\u2019s declaration or photos.<\/p>\n

What\u2019s Ahead?<\/b><\/i>
\nWhile it will likely be some time before the Land Board approves a new certified shoreline along Dobbins\u2019 property, Diamond says the DLNR is already working to rid Kaua`i\u2019s North Shore of artificially planted and\/or induced vegetation, in accordance with Act 120 passed by the 2013 Legislature. Already, she said, says several property owners have removed their encroaching vegetation at the DLNR\u2019s request.<\/p>\n

For Further Reading<\/i><\/p>\n

The July 2013 edition of\u00a0Environment Hawai`i<\/i>\u00a0has more background on the case discussed in this article. See, \u201cKaua`i Shoreline Certification Case Hinges on Credibility of Evidence.\u201d<\/p>\n

Articles in the archives section of our website,\u00a0www.environment-hawaii.org,<\/a>\u00a0may be viewed and downloaded for free by current subscribers. Others may purchase a two-day access pass for $10.<\/p>\n<\/div>\n

 <\/p>\n

Volume 24, Number 9 March 2014<\/div>\n","protected":false},"excerpt":{"rendered":"

The state Board of Land and Natural Resources did pretty much everything wrong when it approved Wainiha, Kaua`i property owner Craig Dobbin’s certified shoreline in 2010. That’s the impression one gets from reading the January 27 Hawai`i Supreme Court decision … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,4,36],"tags":[3],"class_list":["post-323","post","type-post","status-publish","format-standard","hentry","category-access","category-development","category-march-2014","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/323","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=323"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/323\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=323"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=323"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=323"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}