Landmark cases of the Hawai'i Supreme Court from the late-60s and early-70s and the shoreline certification statute, Haw. Rev. Stat. ch. 205A, use identical terms in establishing the shoreline at "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." The court, moreover, has declared beaches to be a "public trust," emphasizing the overall public policy of "extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible." The BLNR's rules, however, add extra language not in the court's precedent or the statute, allowing consideration of the debris line only "where there is no vegetation in the immediate vicinity." This effectively creates an absolute preference for the vegetation line, even where the debris line extends further mauka than the vegetation line and would thus designate a shoreline more protective of the beach environment and public access.
"Hawai'i law declares our beaches are a ‘public trust' that should be extended as much as possible for everyone to use and enjoy," said Earthjustice attorney Isaac Moriwake. "The BLNR's rules distort this principle and allow and even encourage private landowners to diminish the beach, cut off public access, and create public hazards."
The undue emphasis on vegetation in determining the shoreline has directly contributed to the degradation and loss of beaches statewide. In addition to marking the boundary between private land and public beach, the shoreline also provides the baseline from which the setbacks for coastal development are measured. Particularly on shores that receive high seasonal surf, where debris lines regularly extend several feet to several dozen feet beyond the vegetation, disregarding debris lines pushed mauka by the upper reach of the waves allows development to proceed too close to the ocean. This inevitably leads to beach erosion from the "hardening" of the shoreline via landscaping and the erection of concrete structures such as sea walls. According to coastal geologists, one-fourth of Oahu's beaches and one-third of Maui's beaches have been lost due to coastal hardening.
The undue emphasis on vegetation also has encouraged widespread abuse by landowners seeking to expand their property by artificially extending the vegetation line makai. It is not uncommon to see up to twenty or forty feet of what was once open, sandy beach covered with artificially induced vegetation. This not only physically takes away public beach and blocks public access, but also exacerbates beach loss, ironically to the detriment of the landowner as well as the public.
"As the late PASH President Jerry Rothstein phrased it, the BLNR's shoreline certification process is causing the ‘administrative erosion' of our beaches," said Isaac Harp, President of PASH. "State mismanagement and private attempts to steal public beaches violate the public trust and end up destroying the resource for everyone."
"Hawai'i has a proud history of ensuring public access for all to beaches and shorelines," said Jeff Mikulina, Director of the Sierra Club, Hawai'i Chapter. "But the rules being applied today frequently certify the shoreline too close to the water, creating a tangible loss of the public's resources."
For several years, concerned citizens and scientists have been seeking to improve the shoreline laws through legislation. Several shoreline working groups have been convened to provide recommendations for reform. The legislative proposals, however, have stalled year after year.
"The blanket emphasis on vegetation is the most glaring defect in the present shoreline certification and setback system," said Moriwake. "Hopefully this action will spur our legislators finally to pass other needed reforms."
"PASH remains hopeful that the ongoing efforts to reform the shoreline certification process and setback laws will produce real progress to the benefit of the public," said Harp. "In the meantime, we must work together to 'stem the tide' of beach loss by all means possible."