A presentation on the administrative process and recent case law on locating the certified shoreline in Hawaii, a prerequisite to coastal development.

1. J E S S E K . S O U K I , F I R S T D E P U T Y
D E P A R T M E N T O F L A N D A N D N A T U R A L R E S O U R C E S , S T A T E O F H A W A I I
J U L Y 7 , 2 0 1 4
WHERE IS THE
SHORELINE?

2. S T A T U T E S A N D A D M I N I S T R A T I V E R U L E S
SHORELINE CERTIFICATION PROCESS

3. HRS § 205A-1
SHORELINE DEFINITION
• ‘Shoreline’ means
• the upper reaches of the wash of the waves,
• other than storm or tidal waves,
• at high tide during the season of the year in which the
highest wash of the waves occurs,
• usually evidenced by the edge of the vegetation growth, or
• the upper limit of debris left by the wash of the waves.

4. HRS § 205A-42
DETERMINATION OF THE SHORELINE
• Board of Land and Natural Resources (“BLNR”)
Adopts Rules
• procedures for determining a shoreline
• appeals of shoreline determinations
• Valid for 12 months
• except where the shoreline is fixed by government
approved artificial structures
• Public notice of accepted application
• Public comments submitted in writing 15 days from
public notice

5. HAR CH. 13-222
SHORELINE CERTIFICATIONS
• Implements HRS § 205A-42
• Application is accepted
• 90 days to make a determination
• State land surveyor reviews application and
supporting materials
• Public Comments
• Field Survey
• Appeal

6. H A W A I I A P P E L L A T E O P I N I O N S
SEMINAL SHORELINE CASES

7. IN RE APPLICATION OF ASHFORD, 50
HAWAII 314 (1968).
• “Ma ke kai” means “along 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 waves[.]”
• Testimony from witnesses living in the area was
relevant to determining the shoreline property
boundary.

8. COUNTY OF HAWAII V. SOTOMURA, 55
HAW. 176 (1973).
• “[P]ublic policy... favors extending public use and
ownership to as much of Hawaii's shoreline as is
reasonably possible.”
• “[W]here the wash of the waves is marked by both
a debris line and a vegetation line lying further
mauka[,] the presumption is that the upper reaches
of the wash of the waves over the course of a year
lies along the line marking the edge of the
vegetation growth.”

9. DIAMOND V. BLNR, 112 HAW. 161 (2006)
• Vegetation will not always prevail over the debris
line.
• Where the shoreline is marked by both a vegetation
line and a debris line, the line further mauka is used
to locate the shoreline.
• “Vegetation growth” does not include salt-tolerant
plants planted on a property for the purpose of
shoreline demarcation, nor the natural expansion of
such growth.
• A shoreline determination is a contested case
hearing.

10. THE ROAD TO
DIAMOND V. DOBBIN, 319 P. 3D 1017 (2014)

11. FACTS CONSIDERED
• 2005 Application
• Petitioners participated in site inspection
• Debris line further mauka than shown on map (near the
mauka edge of naupaka)
• Application rejected
• 2008 Application
• Petitioners participated in site inspection
• Decision: “There is no evidence that the wash of the waves
has extended that far mauka [i.e., to the edge of naupaka]
in the past two winters, especially the most recent winter
season.”
• Shoreline set at top of dune.

12. ADMINISTRATIVE APPEAL
• June 27, 2008, Petitioners filed
a Shoreline Certification — Notice of Appeal
• Petitioners argued, “[e]ach year, depending upon
the size and direction of the swells, the winter waves
repeatedly wash well into and beyond the currently
proposed shoreline for [the property].”
• Petitioners provided photographic evidence.
• Department of Land and Natural Resources
(“DLNR”) denied the appeal and certified
the shoreline—at top of dune.

13. ADMINISTRATIVE APPEAL TO CIRCUIT
COURT – NUMBER 1
• The court vacated the BLNR's initial Decision
• Remanded to the BLNR with
• “specific instructions to appropriately consider and give
due weight to [Petitioners'] proposed evidence and to
correctly apply the applicable statutes, case law and
administrative rules....”
• Dobbin appealed.

14. BLNR AMENDED DECISION
• Based on Circuit Court’s Remand
• Added Findings of Fact
• Back of the frontal dune, was identified during site visit in
2005 as shoreline
• 2005 shoreline was considerably further mauka than the
proposed shoreline location in 2008 application
• However, State Surveyor and DLNR staff also noted that
there was no evidence that the wash of the waves had
extended that far mauka in the past two winters, especially
not during the immediately preceding winter season
• Certified shoreline in the same place.

15. COMPETING FACTS
Petitioners’ evidence
• Testimony did not refer to
specific observations of the
shoreline
• It is not possible to ascertain
from photographs what
they were purported to
portray
• Testimony did not include
dates when specific
photographs were taken or
who took the photographs
Respondents’ evidence
• Testimony that vegetation
growing along the shoreline
was not planted and
"induced”
• Affidavits current and prior
owners all denied planting
• Facts presented by DLNR
and State Surveyor for
determining the location of
the shoreline for shoreline
certification purposes
pursuant to HRS § 205A-1
and HAR § 13-222-2

16. APPEALS
• Administrative Appeal to Circuit Court – Number 2
• BLNR’s determination of the shoreline location was entitled
to deference
• The BLNR argued that less weight should be given to
historical evidence
• Circuit Court Vacated and Reversed BLNR
• Intermediate Court of Appeals – Circuit Court Cases
Consolidated
• ICA Agreed with BLNR
• Petitioners Appealed to Hawaii Supreme Court

17. DIAMOND V. DOBBIN, 319 P.
3D 1017 (2014)
HAWAII SUPREME COURT

18. HISTORICAL EVIDENCE MUST BE
CONSIDERED BY BLNR
• BLNR must consider all historical evidence in making
its shoreline determination
• BLNR testified that is looked back 2 winters
• Petitioners noted 8 years
• The trial court noted 12 years
• Holding
• Ashford, “reputation evidence by kama`aina witnesses”
• “[T]he ultimate determination of the upper reaches of the
wash of the waves at high tide” not solely for experts.

19. MULTI-VARIABLE APPROACH IS NOT
STATUTE OR CASE LAW
• Shoreline type, location, exposure, including “debris
lines, vegetation lines, wet lines, artificial structures, dune
crests, erosion scarps, salt deposits, discoloration, and
saltwater-dependent biota”
• Presence and effect of artificially induced vegetation
• Information from those with personal knowledge and
familiarity of the area
• Holding
• Where the shoreline is marked by both a vegetation line and a
debris line, the line further mauka is used to locate the shoreline
• The boundary markers for the shoreline must be “‘easily
recognizable’” and “‘known to the people living thereon or in
the neighborhood.’” Sotomura

20. VEGETATION GROWTH
• “Vegetation growth" does not include
• Salt-tolerant plants planted on the property for the purpose
of shoreline demarcation, nor
• The natural expansion of such growth
• Holding
• BLNR must consider whether the vegetation growth is
“naturally rooted and growing”
• If the vegetation is not “naturally rooted and growing,”
where is the debris line?

21. WITNESS TESTIMONY
• Not in the form of an affidavit or declaration
• Not attested to
• No context
• No information on document preparers’ expertise
• Holding
• “[A]ny oral or documentary evidence may be received”
unless such evidence is "irrelevant, immaterial, or unduly
repetitious.” HRS § 91-10.
• Testimony need not be from an expert.
• Reputation evidence by kama`aina witnesses may be used.

22. POLICY IMPLICATIONS
• Science Based Decision Making
• Natural Infrastructure
• Contested Cases
• Agency Discretion
• Public vs. Private