State of the Beach/Perspectives/Beach Ownership

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Beach Ownership is Still in Question

An appeals court will decide who owns new natural land above a high-water mark

By Susan Essoyan

The Intermediate Court of Appeals is scrutinizing a Hawaii law passed in 2003 that declares that new, naturally formed beach land above the high-water mark should belong to the public -- not adjoining private property owners.

"This case pits the interests of private beachfront landowners against the interests of the general public, and against the people's constitutionally declared desire and command that the state's treasured beaches be preserved for the enjoyment of all," the state argued in its brief.

But private landowners say that the law deviated from historical practice and common law, under which private property owners benefited when beaches expanded due to natural forces and lost ground when the waves scoured away the beach. In a class-action lawsuit against the state, beachfront landowners successfully challenged the legislation in court. Circuit Judge Eden Hifo ruled in 2006 that the government had to compensate adjoining property owners if it wanted to take such land. The state turned to the Intermediate Court of Appeals, which heard oral arguments this month in the case, Maunalua Bay Beach Ohana 28 et al. v. State of Hawaii, and could rule at any time.

"Public beach ownership is a great thing, but the state's rights cannot be expanded by an illegal land grab," said Paul Alston, attorney for Maunalua Bay Beach Ohana 28 and two other Portlock property owners, who sued on behalf of all oceanfront private landowners in the state.

"Large public beaches are wonderful; they bring much happiness to Hawaii's citizens and tourists, alike," Alston wrote in his brief. "However, private landowners are under no obligation to donate their private property for the cause."

In Hawaii the public beach is defined as the shoreline to the highest wash of the waves over the course of a year, a boundary that can move over the years, and is often delineated by the vegetation line or debris line. Common law in Hawaii gave adjoining property owners rights to new, naturally formed land above the high-water mark. Since 1985 property owners have had to prove such land existed for 20 years before they could register it as their own.

Although the current lawsuit was filed by Portlock landowners, the roots of the issue reach to the Windward side and the shrubbery growing on Kailua's shoreline nearly a decade ago. As Kailua Beach widened over the years, some beachfront owners began watering public land to encourage vegetation to grow in hopes of extending their property line. That alarmed some residents, who turned to their legislators for help.

"I was just a stay-at-home mom who witnessed property owners intently planting and watering on the public beach in order to claim the beach as their property," said Karen Simmons, a local resident who helped push for the law. "So I asked, Why are they allowing people to steal the public beach?

"It didn't make sense to me that just because you lived next door to the public beach, that you could absorb it into your property," she said last week. "Everybody should be able to enjoy the beach area, including the landowner. It all belongs in the public trust. The public should own it."

Legislators agreed, unanimously approving a bill now known as Act 73 which was signed by Gov. Linda Lingle in 2003. The law declares that only the state can register land accreted, or accumulated through natural forces, along the ocean. It made an exception for private property owners whose eroded land had been restored by accretion.

A similar bill actually passed the year before, but it got vetoed by then-Gov. Ben Cayetano, who called it a "marked departure from clearly established common law of this state."

Attorneys for the landowners who sued to block the law say they do not condone the actions of property owners who try to artificially extend their property lines by watering beach vegetation. They note that Act 73 applies only to land created by "natural forces." They also emphasize that they are not trying to restrict public access to the beach.

"No one disputes that private landowners living along the shoreline do not own the property makai of the upper wash of the waves; that land has been and always will be, public land," Alston argued in his brief.

The Maunalua Bay property owners simply believe that the state overreached with the 2003 law, according to their lawyers.

"It used to be the law that if the beach got larger or smaller, the property owner would either gain or lose based on that," said Laura P. Couch, another attorney representing Maunalua Bay Beach Ohana 28. "Act 73 changed that and said if the beach gets larger it belongs to the state. It converted a shifting boundary into a fixed boundary. And because the landowners have always had a vested right in the shifting boundary, that's why there was a taking."

Circuit Judge Eden Hifo agreed, ruling that the law "represented a sudden change in the common law and effected an uncompensated taking of, and injury to, littoral owners' accreted land and ... right to ownership of future accreted land."

In its appeal the state argued that no "taking" occurred, because the law did not take any property from oceanfront landowners, but merely took away the "hope" of acquiring future, newly deposited beachfront land "if and when the accretions stayed in existence for 20 years." Private property owners still retain their land and its access to the ocean, Deputy Attorney General Girard Lau told the court.

As the case winds its way through the courts, the problem of vegetation encroaching on public beach lands continues to crop up elsewhere, in places such as Kahala, the North Shore and Kihei, Maui. Don Bremner, a former Kailua resident who advocated for the new law, is adamant that the state needs to preserve beach land for all Hawaii's people.

"It was, and still is, time to stop shortchanging the public by giving away valuable beach land to abutting owners who do nothing in particular to deserve such a windfall from the state," Bremner said.

Sen. Fred Hemmings (R, Kailua-Waimanalo), a champion of Act 73, said last week that the rights of those on both sides of the "high-water mark" should be respected. "We don't want shoreline landowners to accrete, or gain, beach area that they never owned in the first place," Hemmings said. "Nor do we want landowners to lose their land either because of erosion."

"Though we did pass legislation that protected the public from having public beach fenced off or accreted," he added, "we did not adequately protect landowners whose land is being eroded."

This article originally appeared in the Honolulu Star Bulletin on Nov 30, 2009.