Diamond v. Dobbin.Â

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Electronically Filed
Supreme Court
SCWC-30573
27-JAN-2014
09:43 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
----o0o—
CAREN DIAMOND and BEAU BLAIR, Petitioners/Plaintiffs-
Appellants/Appellees-Cross-Appellees,
vs.
CRAIG DOBBIN and WAGNER ENGINEERING SERVICES, INC.,
Respondents/Defendants-Appellees/Appellants-Cross-Appellees,
and
STATE OF HAWAI#I, BOARD OF LAND AND NATURAL RESOURCES,
Respondent/Defendant-Appellee/Appellee-Cross-Appellant.
SCWC-30573 and SCWC-11-0000345
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30573, CAAP-11-0000345; CIV. NOS. 09-1-0197, 10-1-0116)
January 27, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold that in making a shoreline determination
pursuant to Hawai#i Revised Statues (HRS) § 205A-42 (1993)1,
1
HRS § 205A-42 states in its entirety:
(continued...)
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Respondent/Defendant-Appellee/Appellee-Cross-Appellant State of
Hawai#i, Board of Land and Natural Resources (the BLNR), must
consider the historical evidence of the upper reaches of the wash
of the waves. The BLNR’s May 21, 2010 “Amended Findings of Fact,
Conclusions of Law, and Decision and Order” (Amended Decision),
establishing a certified shoreline for the property owned by
Respondent/Defendant-Appellees/Appellants-Cross-Appellee Craig
Dobbin (Dobbin) and surveyed by Respondent/Defendant-
Appellees/Appellants-Cross-Appellee Wagner Engineering Services,
Inc. (Wagner) located in Wainiha, Kauai (the property),
effectively failed to do so and contained errors of law and
clearly erroneous findings of fact. Accordingly, the BLNR’s
Amended Decision is vacated. Correspondingly, the October 3,
2012 Judgment of the Intermediate Court of Appeals (ICA)2,
upholding the Amended Decision and vacating the March 31, 2011
Judgment of the Circuit Court of the Fifth Circuit (the court)3
that had sustained the appeal of Petitioners/Plaintiffs-
1
(...continued)
§ 205A-42 Determination of the shoreline. The board of
land and natural resources shall adopt rules pursuant to
chapter 91 prescribing procedures for determining a
shoreline and appeals of a shoreline determinations;
provided that no determination of a shoreline shall be valid
for a period longer than twelve months, except where the
shoreline is fixed by man-made structures which have been
approved by appropriate government agencies and for which
engineering drawings exist to locate the interface between
the shoreline and the structure.
2
The Honorable Daniel R. Foley, Alexa D.M. Fujise, and Katherine G.
Leonard presided.
3
“The court” refers to the Circuit Court of the Fifth Circuit
presided over by the Honorable Kathleen N.A. Watanabe.
2
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Appellants/Appellees-Cross-Appellees Caren Diamond and Beau Blair
(Petitioners) as against the said BLNR Amended Decision, is also
vacated. For the reasons stated herein we vacate the court’s
March 31, 2011 Judgment in part. We remand to the court, with
instructions to remand the case to the BLNR for proceedings
consistent with this opinion.
I.
A.
The Shoreline Certification Process
In 1986, the legislature enacted Act 258, which amended
HRS chapter 205A, governing coastal zones. 1986 Haw. Sess. Laws
Act 258, § 1 at 466-68. As part of Act 258, the legislature
amended the definition of “shoreline” found in HRS § 205A-1
(Supp. 2005) to read as follows: “‘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 1986 Haw. Sess. Laws Act 258, § 2 at
469 (emphasis in original). That section also defines “shoreline
area” as “all of the land area between the shoreline and the
4
This amendment is consistent with this court’s decision in County
of Hawai#i v. Sotomura, 55 Haw. 176, 182, 517 P.2d 57, 62 (1973), discussed
infra. Sotomura clarified the definition of “shoreline” in HRS § 205A-1 for
purposes of a shoreline certification, holding that, “as a matter of law . . .
where 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.” 55 Haw. at 182, 517 P.2d at 62 (emphases
added).
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shoreline setback line . . . .” HRS § 205A-41 (2001 Repl.). The
“shoreline setback line” is “that line established in [HRS
Chapter 250, Part III] or by the county running inland from the
shoreline at a horizontal plane.” Id.
HRS § 205A-42 authorizes the BLNR to “adopt rules
pursuant to chapter 91 prescribing procedures for determining a
shoreline and appeals of shoreline determinations[.]” Pursuant
to this statutory mandate, the BLNR adopted, inter alia, Hawai#i
Administrative Rules (HAR) § 13-222-10 (2003)5, setting forth the
procedure for shoreline certification, and HAR § 13-222-26
(2003)6, describing the process for appealing a shoreline
5
HAR § 13-222-10 provides, in relevant part:
§ 13-222-10 Review, revision and certification.
(a) The state land surveyor shall review the map,
using the photographs, other documents and information
provided by the applicant, and the state land
surveyor’s knowledge of the affected area to determine
the shoreline.
. . . .
(d) When satisfied with the location of the
shoreline, the state land surveyor shall transmit the
shoreline maps to the chairperson [of the BLNR] for
his approval and signature.
(e) This map shall be the proposed shoreline
certification. The public notice of this proposed
shoreline certification shall be made in accordance
with section 13-222-12.
. . . .
(g) If an appeal is filed under section 13-222-26,
the certification process shall be stayed until the
administrative appeal is resolved by the [BLNR] or
chairperson [of the BLNR].
6
HAR § 13-222-26 provides, in relevant part:
§ 13-222-26 Appeal of shoreline certification.
(a) Upon timely application, the following persons
or agencies may have standing to appeal:
. . . .
(4) Other persons or agencies who can show a
(continued...)
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certification.
B.
2005 Shoreline Certification Application
On June 27, 2005, Esaki Surveying and Mapping, Inc.
filed an application for Shoreline Certification with the DLNR on
behalf of Jeffrey Galloway (Galloway), the owner of the property.
The purpose of the Shoreline Certification was to obtain a
Building Permit.7 Galloway’s application was transmitted to
State of Hawai#i Department of Accounting and General Services
(DAGS) Surveyor Reid Siarot (Siarot). See HAR § 13-222-10(a)
6
(...continued)
substantial interest in the matter; provided
that the [BLNR] or chairperson [of the BLNR] may
grant standing only if the person’s or agency’s
participation will substantially assist the
board or chairperson in its decision making.
. . . .
(c) Any person or agency wishing to appeal shall
file a notice of appeal in writing with the department
no later than 20 calendar days from the date of the
public notice of the proposed shoreline certification
or rejection.
(d) The notice of appeal shall state the legal and
factual basis for the appeal.
(e) Upon determination that a person or agency has
standing to appeal, the chairperson [of the BLNR] by
written order shall set forth the schedule for the
briefs and requirements for the briefs.
(f) The sole issue on appeal shall be whether the
proposed shoreline certification or rejection was
proper.
. . . .
7
The purpose of the shoreline certification process is “to
standardize the application procedure for shoreline certifications for
purposes of implementing the shoreline setback law and other related laws.”
HAR § 13-222-1 (2003). HRS § 205A-43(a) (2001 Repl.) provides that
“[s]etbacks along shorelines are established of not less than twenty feet and
not more than forty feet inland from the shoreline.” The “shoreline setback
lines,” along with the certified shoreline, dictate the location of the
“shoreline area”, an area where there are limitations on the structures that
may be built. See HRS § 205A-44 (2001 Repl.) (“[e]xcept as provided in this
section, structures are prohibited in the shoreline area without a variance
pursuant to this part.”).
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(2003) (“The state land surveyor shall review the . . .
information provided by the applicant[.]”).
Petitioners and Barbara Robeson sent a letter to Siarot
requesting that a site visit be conducted during the winter
months to determine the appropriate shoreline. On April 12,
2006, Siarot sent a letter to the DLNR stating that he had
inspected the shoreline at the site, and that Dennis Esaki
(Galloway’s surveyor), Petitioners, and others “participated in
the site inspection.” Siarot stated that, “[a]s a result of the
inspection, the shoreline was determined to be at the debris line
near the mauka[8] edge of the naupaka[9] hedge, further mauka
than deliniated on the map. Mr. Esaki was advised to revise his
maps and photographs.” (Emphasis added.) Because Dennis Eskai
had failed to return his calls or provide the requested
information during a period of six months, Siarot recommended
that, in accordance with HAR § 13-222-7(b)(15) and (I) (2003)10,
8
“Mauka” means “inland”. See Mary Kawena Pukui & Sameul H. Elbert,
Hawaiian Dictionary 242, 365 (2d ed. 1986) [hereinafter Pukui & Elbert,
Hawaiian Dictionary].
9
“Naupaka” is “a spreading, succulent shrub found on coasts of
tropical Asia and some islands in the Pacific.” Pukui & Elbert, Hawaiian
Dictionary, at 263.
10
HAR § 13-222-7 provides, in pertinent part:
§ 13-222-7 Application.
(a) Application for shoreline certification shall be in
writing, addressed and mailed to the [BLNR].
(b) The application shall contain the following:
. . . .
6. Maps of the shoreline to be certified, in
accordance with Section 9.
. . . .
15. Any other information requested by
(continued...)
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Galloway’s application be rejected. Galloway subsequently sold
the property.
2008 Shoreline Certification Application
On January 11, 2008, Dobbin and Wagner filed a
Shoreline Certification application with the DLNR for the same
property. The purpose of the certification was to obtain a
building permit for Dobbin, the new owner of the property. The
DLNR accepted the application and transmitted it to Siarot. The
application was also submitted for publication in the Office of
Environmental Quality Control (OEQC) Environmental Notice, to
allow for public comment.
As with the 2005 shoreline certification, Petitioners
sent a letter to Siarot requesting a site visit inspection and
suggested that Siarot review his previous photographs and file
for the property because of “[n]aupaka enroachment issues,
10
(...continued)
the [DLNR] or the state land surveyor as
reasonably necessary to evaluate the
application.
. . . .
(I) If, upon review of an application, the [DLNR] or the
state land surveyor finds: (1) noncompliance with any rule
under this chapter, (2) irregularity in surveying methods
utilized, or (3) the application or any information
submitted by the applicant to be in error or a
misrepresentation of the facts, then the application shall
be denied and returned to the applicant, the 90-day time
period shall cease, and the applicant shall be required to
resubmit a new application.
(Emphases added.)
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planted beach heliotropes[11], [and a] shoreline too seaward . .
. .” On April 18, 2008, a site visit was conducted. A report of
the site visit (report) indicates that the survey personnel were
Siarot, Ian Hirokawa (Hirokawa), and Chris Conger, who were
accompanied by Petitioners and Ron Wagner. The report differed
from the shoreline location recommended by Siarot in 2005, that
“was considerably mauka” of the ocean:
Shoreline: . . . . The profile started to mauka with a
graded area in the lawn; then moved makai[ 12] to the
berm of graded sand; then the orange construction
fence; the start of the naupaka hedge and back of the
dune, St. Augustine grass and Iron Wood debris on the
west side; the dune crest and contact between old
accumulated Iron Wood debris and fresh Iron Wood and
other debris; the makai edge of the hedge ([n]aupaka,
beach heliotrope, spider lily) and debris; beach face;
recent debris line (cobble and gravel); the berm crest
and berm face; makai edge of sand and start of beach
rock; and most makai was the beach rock ridge and
swash zone.
. . . .
Decision: Recommended the proposed shoreline for
certification. A different location, considerably
farther mauka on the back of the frontal dune, was
identified as the shoreline location during an October
19, 2005 site visit (KA-034-2A) by Dolan Eversole,
Chris Conger, [] Siarot, and Morris Atta. There is no
evidence that the wash of the waves has extended that
far mauka in the past two winters, especially the most
recent winter season.
(Emphases added.) Siarot sent a letter dated May 28, 2008 to the
DLNR, Land Division Administrator, Morris M. Atta, recommending
that “the State of Hawai#i should have no objections to adopting
the dune crest as the shoreline as delineated on the map prepared
by [Wagner].”
11
“Heliotrope” is defined as “any of a genus of herbs or shrubs of
the borage family.” Merriam Webster’s Collegiate Dictionary 539 (10th ed.
1993).
12
“Makai” means “on the seaside, toward the sea, in the direction of
the sea.” Pukui & Elbert, Hawaiian Dictionary, at 114.
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Notice of Appeal to the BLNR
On June 8, the proposed shoreline certification for the
property was published in the OEQC bulletin, and on June 27,
2008, Petitioners filed a Shoreline Certification - Notice of
Appeal, stating that “[t]he proposed shoreline certification does
not properly or accurately locate the shoreline according to the
upper reaches of the wash of the waves at high tide during the
season of the year when the highest wash of the waves occurs.”
On September 17, 2008, Hirokawa, a Project Development Specialist
with the Land Division of DLNR, recommended to Laura Thielen, at
that time the Chairperson of the BLNR (Chairperson Thielen), that
the BLNR grant Petitioners standing to appeal the shoreline
application13 and also grant Dobbin and Wagner standing to
participate in the appeal. Chairperson Thielen approved the
recommendation on September 22, 2008, and issued an order
notifying the parties of standing, the briefing schedule, limits
on ex parte communications, and the potential for site
inspections.
In their brief to the BLNR, Petitioners cited to HRS §
205A-1, which as stated, provides the statutory definition of
“shoreline,” and argued that “[e]ach year, depending upon the
size and direction of the swells, the winter waves repeatedly
13
The order attached to the recommendation stated that an
organization called “North Shore Ohana” with an address that was “c/o Barbara
Robeson” was deemed not to have standing in the matter due to its failure to
present evidence or facts sufficient to establish a prima facie case to grant
standing. Barbara Robeson was the other person, in addition to Petitioners,
who had requested a site inspection for the property when Galloway’s
application was under consideration.
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wash well into and beyond the currently proposed shoreline for
[the property].” With respect to their contention that
Respondents Dobbin and Wagner’s proposed shoreline did not
represent the shoreline in accordance with the definition at HRS
§ 205A-1, Petitioners argued several points. First, they alleged
that their evidence, in the form of photographs, was the “most
credible” and that Siarot incorrectly located the shoreline
“based solely in this case, upon ‘on the ground evidence,’ at the
time of the April 18, 2008 site visit.” (Emphases in original.)
Second, Petitioners averred that “the State Surveyor ignore[d]
his own recommendations of October 19, 2005, and further
ignore[d] the importance of the historical evidence which
confirms the Surveyor’s previous location of the shoreline . . .
.” (Emphases in original.) They stated that, “[s]imply put, the
DLNR’s current determination of the shoreline based upon a
limited one year time frame, i.e. the particular year for which
the certification is sought, is wrong as a matter of law.”
In support of these first two arguments, Petitioners
contended that the exhibits they provided,14 including
photographic evidence, demonstrated the highest wash of the
waves, and that the naupaka and heliotrope trees on the property
14
Petitioners provided, as exhibits to their brief to the BLNR, (1)
Wagner’s proposed shoreline certification map for the property, (2) a December
26, 2007 proposed shoreline certification map for the property, (3) a number
of photographs, (4) Siarot’s letter dated April 12, 2006, (5) an email from
DLNR employee Chris Conger dated May 30, 2008, and (6) testimony from Charles
“Chipper” Wichman, Director of Limahuli Garden and Preserve, regarding naupaka
plants (Wichman testimony). Petitioners also attached declarations from Beau
Blair (Blair declaration), Caren Diamond (Diamond declaration), and Barbara
Robeson (Robeson declaration).
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were acting as a “‘barrier’ which [was] prevent[ing] and[/]or
hinder[ing] the observation of the true evidence of the debris
line created by the upper wash of the winter waves.” (Emphases
in original.) They alleged that the naupaka and other salt
tolerant plants evidenced in the photographs were being used to
create an artificial shoreline and resulted in a vegetation line
that did not represent the “highest wash of the waves.”
Finally, Petitioners contended that using the
“artificial shoreline,” represented by the vegetation line on the
property, as the certified shoreline was against public policy.
They suggested that this court has held “that public policy
‘favors extending to public use and ownership as much of Hawaii’s
shoreline as is reasonably possible[,]’” (quoting Sotomura, 55
Haw. at 180, 517 P.2d at 61), and that their proposed shoreline,
based on the 2005 State Surveyor recommendations, was in accord
with this policy.
Dobbin and Wagner Brief in Support of Their Proposed Shoreline
On November 12, 2008, Dobbin and Wagner filed their
answering brief with the BLNR. First, they alleged that
“[a]lthough the [DLNR] has historically been lenient in
permitting lay witnesses to testify as to factual underpinnings,
the ultimate determination of the upper reaches of the wash of
the waves at high tide in the season of the year in which the
highest wash of the waves occurs is one for experts and those
qualified under the law.” Thus, they related, the determination
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of the property shoreline as made by the licensed surveyor
(Wagner), and as reviewed by Siarot and DNLR personnel, should be
“afforded deference” as a matter of administrative law.
Second, Dobbin and Wagner argued that Wagner’s
determination of the shoreline, as affirmed by the State Surveyor
and DLNR personnel was “supported by substantial evidence and
complie[d] with all applicable statutory and regulatory
requirements.” Dobbin and Wagner contended that the proposed
certified shoreline satisfied the two relevant indicators in the
statutory definition of “shoreline” as set forth in HRS § 205A-1
-- the vegetation line and the upper limit of debris. They
maintained that there were mature ironwoods and naupaka
established makai of the dune crest and that the debris shown in
Petitioners’ photos had originated from “falling branches and
needles along the shoreline[,]” rather than from the wash of the
waves. According to Dobbin and Wagner, any debris that was from
the waves had slid down the dune and thus was “back side debris”,
rather than the “‘upper limit of debris left by the wash of the
waves.’” (Quoting HRS § 205A-1.) (Emphasis added.)
In support of the shoreline proposed by Wagner, Dobbin
and Wagner attached exhibits15 that included (1) an affidavit of
15
Respondents Dobbin and Wagner attached to their brief (1) the map
of the proposed shoreline prepared by Wagner, (2) their original application
to the BLNR for shoreline certification, (3) a copy of the notice of proposed
shoreline certification in the OEQC Environmental Notice, (4) Petitioners’
Notice of Appeal, (5) a declaration of Dobbin (Dobbin declaration), (6) a
declaration of Galloway (Galloway declaration), (7) the Moody affidavit, (8)
the Shook affidavit, (9) a copy of the DLNR’s “Report to the Twenty-Third
Legislature Regular Session of 2006, Requesting a Review and Analysis of the
(continued...)
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Steve Moody (Moody affidavit), the owner of the property before
Galloway from 2000 to 2004, stating that there was no planting of
vegetation along the shoreline front at any time; and (2) an
affidavit of Danny Shook (Shook affidavit), who did landscaping
work for Moody, stating that the irrigation and sprinklers in
place “were not aimed towards nor intended to irrigate the
naturally growing shoreline vegetation.” Dobbin and Wagner
alleged that Petitioners’ photographs indicated that “none of the
sprinklers were aimed toward the shoreline vegetation.” With
respect to Petitioners’ proposed shoreline, Dobbin and Wagner
contended that Petitioners’ shoreline was completely arbitrary,
that “[t]here is no admissible proof to support their asserted
line, nor anything to tie that line to the statutory criteria,”
and that “the heavy natural growth of the naupaka fronting the
shoreline renders it impossible to discern any line of debris at
such a distance from the certified shoreline[.]”
Third, Respondents Dobbin and Wagner alleged that all
of Petitioners’ photographs “purporting to show a debris line
from years past are irrelevant” because “[a]s a matter of law,
wave events from past years do not and cannot establish the upper
reach of the wash of the waves in the season of the year in which
an applicant submits.” (Citing In re Application of Sanborn, 57
15
(...continued)
Issues Surrounding the Shoreline Certification Process for the Purpose of
Establishing Shoreline Setbacks,” (DLNR Report to the Legislature) and (10) a
“Problem Statement” by Chip Fletcher, Geologist at the University of Hawai#i,
created as part of a 2005 Shoreline Working Group.
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Haw. 585, 588, 562 P.2d 771, 773 (1977).) Dobbin and Wagner
contended that this interpretation of HRS § 205A-1 was
appropriate because “[s]tatutes regulating, restraining or
interfering with private property are subject to a strict
construction” (citation omitted), and “where the terms of the
statute are plain, unambiguous and explicit, as in this case, the
appellate body is not at liberty to look beyond the statutory
language for a different meaning[,]” (citations omitted).
They also alleged that this “current year” requirement
is recognized in the DLNR Report to the Legislature, in which it
recommended that the term “‘annual’ means that the wave must have
a statistical recurrence interval of at least once per year.”
(internal quotation marks omitted.) According to them, the
requirement that an application for shoreline certification
include maps “‘based on an actual field survey conducted within
ninety (90) days prior to the filing . . . [,]’” (quoting HAR §
13-222-9(c) (2003)), indicates that the map should be based on
that year’s field survey alone.
Fourth, they contended that even if other years could
be considered by the BLNR, the evidence from preceding years of
“gravity flow down the backside of the dune [on the property]
[was] insufficient” to establish the “upper reaches of the wash
of the waves[,]” because a gravity flow of debris down the dune
does not mark the “upper reaches.” According to Respondents
Dobbin and Wagner, the statute uses the phrase “upper,” and that
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interpretation is consistent with the BLNR Report to the
Legislature, which states that “‘run up’ means that the water
position setting the shoreline must be derived exclusively by
wave energy run-up, and not aided by gravity or funneling through
narrow passages.”16 (Internal quotation marks omitted.)
(Emphasis in original.)
Fifth, they argued that the statutory definition of a
shoreline recognizes the presence of vegetation as a possible
shoreline indicia, and that the BLNR should not speculate on how
far debris would travel absent intervening vegetation, because
that would mean that it gave the debris line preference over the
vegetation line, in contravention of Diamond v. State Board of
Land & Natural Resources, 112 Hawai#i 161, 174, 145 P.3d 704, 717
(2006) (Diamond I). In other words, they maintained that if
debris was stopped in its movement by the vegetation, the BLNR
should allow the area where it stopped to represent the
shoreline, rather than prioritizing a hypothetical debris line
over an actual vegetation and debris line.
The BLNR’s Denial of Petitioners’ Appeal
On June 17, 2009, Hirokawa transmitted a memorandum to
BLNR Chairperson Thielen, recommending that she deny Petitioners’
appeal, “based upon [Petitioners’] failure to provide evidence to
support the relocation of the shoreline at their proposed
16
Dobbin and Wagner did not explain how this proposed definition of
“run up” from the BLNR Report to the Legislature should be read in conjunction
with other regulations or with the statutory definition of “shoreline.”
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location.” The memorandum stated that “[t]he evidence they
provide is largely anecdotal, and the photographs provided, which
are often undated, do show an increased growth in naupaka and
various debris lines. However, a closer examination of the
photographic evidence provided fails to overcome their burden of
proof to justify moving the shoreline to their proposed
location.” Attached to the memorandum were the Findings of Fact
(findings), Conclusions of Law (conclusions), and Decision and
Order. Chairperson Thielen approved the memorandum on June 19,
2009.17
On June 19, 2009, Chairperson Thielen signed the
memorandum and the “Findings of Fact, Conclusions of Law, and
Decision and Order” (collectively, Decision). She certified the
shoreline in accordance with Wagner’s map and Hirokawa’s
recommendation, on June 25, 2009.
17
The June 19, 2009 “Findings of Fact, Conclusions of Law, and
Decision and Order” began with a preface that distinguished the certified
shoreline from the “shoreline property boundaries” and the “private property
line.“ The BLNR stated,
Unlike shoreline property boundaries, certified shorelines
are valid for a period of one year only (with an exception
for shorelines along fixed manmade structures), and may in
fact not coincide in the same location with shoreline
property boundaries. Similarly, the private property line
that delineates the public’s right of access along
shorelines typically extends further mauka than both the
certified shorelines and shoreline property boundaries
because unlike the latter two, it is not limited by the
exclusion of the effects of hurricanes and tsunamis on
coastal areas.
It appears that by using the phrase “private property line” the BLNR was
referring to the boundary delininating a “beach transit corridor” pursuant to
HRS § 115-5 (1993). A “beach transit corridor” designates an area where there
is a public right of transit “along the shoreline below the private property
lines[.]” Id. It is unclear what statutory or regulatory definition the BLNR
is referring to when it uses the general term “shoreline property boundaries.”
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II.
First Appeal - No. 30573
Petitioners appealed the BLNR’s Decision to the court
on July 20, 2009. Petitioners challenged a number of the BLNR’s
findings and conclusions, and argued that the Decision and Order
was “arbitrary, capricious, or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion and
wrong as a matter of law.” (Quoting HRS § 91-14(g) (1993)18.)
On March 2, 2010, the court heard oral arguments in the
case, and on April 6, 2010, the court entered its “Findings of
Fact, Conclusions of Law, Decision and Order.” In its
conclusions, the court held, inter alia, that:
2. HRS § 205A-1 defines “shoreline” as “the upper reaches
of the wash of the waves, other than storm and seismic
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 vegetation growth, or the upper limit of debris
left by the wash of the waves.”
. . . .
18
HRS § 91-14(g) provides:
(g) Upon review of the record the court may
affirm the decision of the agency or remand the case
with instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3)Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted
exercise of discretion.
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8. The BLNR’s characterization as either ‘anecdotal
evidence and/or unreliable evidence’ with respect to both
the detailed Declarations of [Petitioners and Robeson], and
the photographs they submitted in support of their appeal is
arbitrary, capricious and/or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion,
not in accordance with HAR § 13-222-10.
9. The map of the certified shoreline published on June
8, 2008 and signed by the Chairperson on June 25, 2009 based
upon the “conditions existing on December 4, 2007" does not
correctly reflect the “upper reaches of the wash of the
waves at high tide during the season of the year in which
the highest wash of the waves occurs”, as provided in HRS §
205A-1.
. . . .
12. The current certified shoreline appears to incorrectly
allow for the manipulation of the shoreline based upon
artificially induced and enhanced vegetation, not in
accordance with HRS § 205A-1.
13. The BLNR’s interpretation of HRS § 205A-1, et. seq.
that only the ”current” year’s evidence of the upper reaches
of the wash of the waves should be considered in determining
the shoreline is arbitrary, capricious and/or characterized
by an abuse of discretion or clearly unwarranted exercise of
discretion in applying HRS § 205A-1, et. seq., as it
conflicts with and/or contradicts the purpose and intent of
HRS § 205A-1, et. seq.
. . . .
17. The BLNR’s interpretation of HRS § 205A-1 to limit its
analysis of the upper reaches of the wash of the waves for
only the “current” season is contrary to the intent of the
statute and public policy to preserve as much shore as
reasonably possible for public use.
(Emphases added.) In its Decision and Order, the court vacated
the BLNR’s initial Decision and 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 . . .
.” On May 19, 2010, the court entered its judgment in the case.
Soon thereafter, on June 17, 2010 Dobbin and Wagner
appealed from the court’s final judgment to the ICA (first
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appeal), and the BLNR filed a cross-appeal on June 21, 2012.
III.
The BLNR’s Amended Decision
In the meantime, on May 21, 2010 in conjunction with
the court’s remand, the BLNR filed its Amended Decision. In
addition to revising, to some extent, the findings in its first
decision, the BLNR added additional findings and conclusions.
Among the changes was the addition of a section in the findings
titled “Prior Application for Shoreline Certification,” which
discussed the DLNR’s actions with respect to the 2005 Galloway
application. The new findings also included, inter alia, the
following statements:
27. The DLNR and State Surveyor also incorporate in their
shoreline determination, any pertinent information about the
shoreline that is presented by the owner of the subject
property and any other member of the public that has
personal knowledge and familiarity with the shoreline
conditions of the subject property during high surf
conditions in the season of high surf.
. . . .
37. During the site visit the State Surveyor and
DLNR staff noted that a different location, on the
back of the frontal dune, was identified during a
previous site visit on October 19, 2005; which was
considerably further mauka than the proposed shoreline
location in the Dobbin application.
38. The 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.
RECOMMENDATION OF THE STATE SURVEYOR
39. On May 28, 2008, in a letter to the [DLNR], the
State Surveyor stated that the State of Hawai#i had no
objections to adopting the dune crest as the shoreline
location, as delineated on the map prepared by []
Wagner.
40. This recommendation was based, at least in part,
on the Galloway application, the Dobbin application,
and the site inspection conducted on April 18, 2008.
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41. At the time of the recommendation, the State
Surveyor was aware that two years prior the
recommended location of the shoreline for the []
[p]roperty was further mauka than the current
location.
(Emphases added.)
The Amended Decision included a separate section of
findings setting forth in more detail the evidence presented by
Petitioners, and the BLNR’s evaluation of that evidence. For
example, the findings stated, inter alia, with respect to the
Blair Declaration, that:
46. [Petitioner] Blair’s testimony did not refer to
specific observations she made of the shoreline,
either as to the location of the highest wash of the
waves or any dates when these high tides occurred.
47. [Petitioner] Blair also testified regarding
photographs which were attached to [Petitioners’]
Opening Brief at 9-12.
48. The photographs contained in Exhibits G through
N of [Petitioners’] Opening Brief are date stamped,
either on the photos or in the captions, with dates
falling between 2004 and 2008.
49. [Petitioner] Blair testified that the photos
show “the upper reaches of the wash of the waves
during the season of the year in which the highest
wash of the waves occurs on the Dobbin property.” []
50. The photos enumerated in [Petitioner] Blair’s
testimony do not all contain depictions of waves.
51. It is not possible to ascertain from [Petitioner]
Blair’s testimony what was the object of specific
photographs or what they were purported to portray.
52. [Petitioner] Blair’s testimony did not contain any
information as to the dates when specific photographs were
taken or who took the photographs.
. . . .
56. [Petitioner] Blair’s and [Petitioner] Diamond’s
testimony do not clearly identify what each photograph is
purporting to depict.
(Emphases added.) Similarly, the Amended Decision set forth the
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evidence provided by Respondents Dobbin and Wagner in a section
titled, “Evidence Presented by Appellees Dobbin[][,]” although
this section did not discuss the DLNR’s evaluation of that
evidence. The new and revised findings on Dobbin and Wagner’s
evidence included, inter alia,
69. [Respondents] Dobbin and Wagner’s Opening Brief
refuted the assertions that the vegetation growing along the
shoreline was planted and “induced” with the aid of
irrigation. []
70. [Respondents] Dobbin and Wagner, as part of their
Answering Brief, presented an affidavit and a couple of
declarations from people who had owned the [] [p]roperty
during the period from 2000 to present. []
71. The current and prior owners all denied ever planting
anything along the makai side of the [] [p]roperty. []
72. [Moody], the owner of the [] [p]roperty from 2000 to
2004, admitted to having an irrigation system [on] the
property, but he testified that the system was located
several feet away from the edge of the naupaka growing along
the shoreline and that all of the sprinkler heads were aimed
so the spray would be parallel to or away from the
shoreline. []
73. [Respondent] Dobbin also submitted testimony from
[Shook], the contractor for [Moody], who testified that when
he was hired in late 2003 there [were] already naupaka and
ironwood trees, with possibly beach heliotropes and wedelia,
growing closest to the shoreline. []
. . . .
75. [Shook] also testified that an irrigation system was
installed on the [] [p]roperty for the purpose of irrigating
the lawn and that the sprinkler heads were aimed so that the
spray pattern would be in a mauka direction or parallel to
the shoreline in a deliberate attempt to avoid the
irrigation of the naupaka and other vegetation growing along
the shoreline. []
(Emphases added.)
The BLNR’s conclusions stated, inter alia,
5. HRS § 205A-1 and HAR § 13-222-2 defines the shoreline
as:
[T]he upper wash of the waves, other than storm and
seismic waves, at high tide during the season of the
year in which the highest wash of the waves occurs,
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usually evidenced by the edge of vegetation growth, or
the upper limit of debris left by the wash of the
waves.[ 19]
. . . .
7. Shoreline certifications are expressly limited to a
twelve month validity period, except in the circumstance
where there is a legal artificial structure. HRS § 205A-
42(a) and HAR § 13-222-11.[ 20]
9. The multi-variable approach used by the DLNR and State
Surveyor is the most reasonable and appropriate method for
determining the location of the shoreline for shoreline
certification purposes pursuant to HRS § 205A-1 and HAR §
13-222-2.
. . . .
11. [Petitioners] failed to establish by a preponderance
of the evidence that the proposed certified shoreline was
not proper.
(Emphasis added.)
IV.
Appeal from the BLNR’s Amended Decision - CAAP-11-000345
On May 25, 2010, Petitioners filed a Notice of Appeal
to the circuit court,21 appealing the BLNR’s Amended Decision
(second appeal). On August 3, 2010, the circuit court granted
Petitioners’ July 1, 2010 Motion to Reassign Case, and reassigned
the case to the court that heard the first appeal.
A.
Petitioners filed their opening brief on September 30,
19
As will be discussed infra, this definition, apparently quoted, is
not actually what is provided by HRS § 205A-1 and HAR § 13-222-2. Those
provisions differ from the BLNR’s recitation, in that they state that
“‘shoreline’ means the upper reaches of the washes of the waves,” rather than
the BLNR’s quote which states that it is “the upper wash of the waves.” See
HRS § 205A-1 and HAR § 13-222-2.
20
It is noted that there was no COL No. 8 in the BLNR’s Amended
Decision. The COLs went directly from No. 7 to No. 9.
21
“Circuit court” refers to the Circuit Court of the Fifth Circuit
presided over by the Honorable Randal G.B. Valenciano.
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2010, alleging that the Amended Decision “clearly is not
consistent with the [c]ourt’s April 6, 2010 Decision and Order,
and constitutes an unwarranted abuse of the Chairperson’s
discretion in recertifying the shoreline in the same place as
previously vacated by [the] [c]ourt.” (Emphases in original.)
Petitioners reiterated their arguments from their previous
appeal, contending that the new findings in the Amended Decision
relating to the characterization of Petitioners’ evidence were
clearly erroneous and an abuse of discretion, and concluding that
the recertification of the shoreline to the same location as
previously vacated by the court was arbitrary, capricious or
characterized by an abuse of discretion.
Dobbin and Wagner filed their answering brief on
November 9, 2010, averring that the BLNR adhered to the court’s
directions in its April 6, 2010 Decision and Order, gave due
weight to the evidence of Petitioners, and correctly applied the
applicable law in confirming Dobbin and Wagner’s proposed
shoreline. The BLNR’s answering brief was also filed on November
9, 2010, alleging that its determination of the shoreline
location was entitled to deference, and that its interpretation
HRS § 205A-42 as the location of the high tide during the season
of the current year in which the highest wash of the waves occurs
was not arbitrary and capricious.22 Petitioners filed a reply
22
Despite arguing in favor of a “current year” interpretation of HRS
§ 205A-42, the BLNR had indicated that it took Petitioners’ historical
evidence, which included the past years’ wash of the waves, into account in
(continued...)
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brief on November 24, 2010, concluding, inter alia, that “[t]he
BLNR’s decision that [Petitioners] have not provided evidence to
meet its burden of proof as to the location of the shoreline is
in and of itself incredible.” (Emphasis in original.)
B.
The court heard oral arguments in the second appeal on
January 5, 2011. Each of the parties was asked to submit
proposed findings of fact, conclusions of law and a proposed
order. On February 16, 2011, the court entered its Findings of
Fact (findings), Conclusions of Law (conclusions), Decision and
Order (collectively, Second Decision) in this second appeal. The
court’s findings included, inter alia,
33. The vegetation planted on Lot 12 during
December, 2003, and January and February, 2004 has
been artificially induced by human intervention and
does not represent evidence of the shoreline.
. . . .
40. The evidence submitted by [Petitioners], including the
photographs, clearly shows that the “upper reaches of the
waves, other than storm and seismic waves, at high tide
during the season of the year in which the highest wash of
the waves occurs” reaches further mauka onto [the property]
than the BLNR’s “current” location of the shoreline at the
“dune crest.”
(Emphases added.) The court included the following conclusions,
8. The BLNR’s characterization as unreliable the
evidence with respect to both [Petitioners’
declarations], and the photographs submitted in
support of the appeal is arbitrary, capricious, and
constitutes an abuse of discretion or unwarranted
exercise of discretion.
. . . .
22
(...continued)
making its determination. The BLNR argued that less weight should be given to
historical evidence.
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10. The vegetation planted on lot 12 in 2003 and
2004 was planted seaward of the shoreline as located
by [] Siarot, State Surveyor at the October 19, 2005
site visit to the subject property. This artificially
induced and enhanced vegetation is incorrectly being
used to currently locate the shoreline and/or hinder
the true evidence of the location of the shoreline in
accordance with HRS § 205A-1.
. . . .
12. The May 21, 2010 recertified shoreline
incorrectly allows for the manipulation of the
shoreline based on artificially induced and enhanced
vegetation.
. . . .
23. The BLNR’s interpretation of HRS § 205A-1 and
HRS § 205A-42 which is based upon the limited duration
of a shoreline certification in conjunction with the
definition of shoreline, and which requires that the
BLNR’s certified shoreline determination reflect the
“current” location of the shoreline is arbitrary,
capricious and constitutes an abuse of discretion or
unwarranted exercise of discretion.
(Emphases added.) Finally, it set forth its Decision and Order,
as provided below.
1. The BLNR’s [Amended Decision] is hereby reversed
and vacated.
2. The certified shoreline as delineated on the
shoreline survey map for the subject property that was
published for final certification in the OEQC Bulletin
on June 8, 2008 and reapproved and reaffirmed by the
BLNR’s Chairperson, [] Thielen on May 21, 2010 is
hereby reversed and vacated.
3. The shoreline for [the property] should be
located approximately 20 feet mauka of the shoreline
as shown on the shoreline certification map published
for final certification on June 8, 2008 and resigned
by the Chairperson on May 21, 2010.
4. Any further certified shoreline proceedings
before the BLNR for [the property] shall be consistent
with this [c]ourt’s Findings of Fact; Conclusions of
Law; Decision and Order.
(Emphases added.) The court entered its judgment on March 31,
2011.
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In the second appeal, Dobbin and Wagner and the BLNR
appealed the judgment to the ICA, challenging the court’s order
vacating the BLNR’s Amended Decision and locating the shoreline
“approximately 20 feet mauka.”
V.
ICA Opinion
The ICA issued an order on August 25, 2011 granting
Petitioners’ motion to consolidate the first and second appeals,
No. 30573 and CAAP XX-XXXXXXX, and ordering the parties to file
briefs for CAAP-11-0000345. On August 31, 2012, the ICA issued
its Memorandum Opinion in the consolidated cases on August 31,
2012. Diamond v. Dobbin, Nos. 30573 & CAAP-11-0000345, 2012 WL
3792024, at *1 (App. Aug. 31, 2012) (mem.). It observed that on a
secondary appeal from an administrative agency decision,
the appellate court will utilize identical standards applied
by the circuit court. Questions of fact are reviewed under
the “clearly erroneous” standard. In contrast, an agency’s
legal conclusions are freely reviewable. An agency’s
interpretation of its rules receives deference unless it is
plainly erroneous or inconsistent with the underlying
legislative purpose.
Id. (quoting Hawai#i Teamsters & Allied Workers, Local 996 v.
Dep’t of Labor & Indus. Relations, 110 Hawai#i 259, 265, 132 P.3d
368, 374 (2006)). First, the ICA concluded that the court had
“engaged in unwarranted fact[-]finding and weighing of the
evidence.” Id. It held that, contrary to the court’s conclusion
8, set forth supra, the BLNR did not “disregard” the evidence
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submitted by Petitioners.23 Id. Rather, the BLNR found the
findings of the DLNR and the State Surveyor that were based on
the 2008 site visit, to be persuasive. Id. The ICA indicated
that the BLNR had acknowledged in its Amended Decision that the
DLNR and State Surveyor had identified a shoreline further mauka
in response to the Galloway application, and that the BLNR had
addressed this by noting that there was no evidence that the
waves had extended to the October 19, 2005 shoreline in the
previous two winters. Id. According to the ICA, the “BLNR was
presented with adequate evidence supporting its ultimate
shoreline determination, and as such, its findings were not
clearly erroneous.” Id. “Therefore,” the ICA held, “the []
court erred in failing to give proper deference to [the] BLNR’s
findings of facts in certifying the shoreline boundary.” Id.
Second, the ICA concluded that the court improperly
characterized the BLNR’s findings as only taking into
consideration evidence from the current year’s upper reaches of
the wave. Id. at *5. In accordance with the BLNR’s Amended
Decision, the ICA reasoned that the BLNR “did not restrict its
23
Respectfully, the ICA opinion is not entirely clear as to which of
the appeals it is addressing with respect to the court’s “unwarranted fact
finding,” although it initially states that “we do not address the issues
raised in [No.] 30573.” 2012 WL 3792024, at *3. First, it states that the
court engaged in unwarranted fact finding in its second appeal, and cites to
findings 28 through 40 in that Decision and Order. Id. Then, the ICA states
that “[b]ased on the evidence submitted by [Petitioners] the [] court
concluded that . . . [,]” and quotes two conclusions from the court’s April 6,
2010 Decision and Order in the first appeal. Id. at *4. Later in the
opinion, the ICA identifies findings 27 through 38 and conclusions 8 and 9
from the first appeal, stating that the court erred in making those
determinations, and then quotes language that is found in the BLNR’s
conclusions in both the first and second appeal. Id. at *4-5.
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analysis of the upper reaches of the waves to the current year,
but rather, ‘took into evaluation all relevant factors present on
the [p]roperty.’” Id. (brackets omitted). Thus, it held that
the BLNR’s analysis, taking into account all relevant factors,
was not contrary to the definition of “shoreline boundary” in HRS
§ 205A-1, because both the debris line and vegetation line are
“used as evidence to determine the shoreline, depending on the
location and stability of each line.” Id. (citing Diamond, 112
Hawai#i at 175, 145 P.3d at 718).
VI.
On December 3, 2012, Petitioners filed their
Application to this court. They ask whether the ICA gravely
erred (1) “in its [f]ailure to [c]onsider and [a]pply [this
court’s d]ecision in Paul’s Elec[tric] Serv[ice] Inc. v. Befitel,
104 Hawai#i 412, 91 P.3d 494 (2004)[,] . . . with respect to the
‘deference,’ if any, the [] [c]ourt should have afforded the
[BLNR] in the [] [c]ourt’s review of the BLNR’s . . . location of
the ‘shoreline’ pursuant to HRS [§] 205A-1, et. seq.”; (2) “in
its [i]nterpretation and [a]pplication of . . . [Diamond I], with
respect to the . . . determination of the shoreline . . . .”; and
(3) “in [c]oncluding that the [] [c]ourt’s 2010 Judgment in Civil
No. 09-1-0197 [No. 30573] was [r]endered [m]oot when the BLNR
filed its Amended Decision [] on May 21, 2010.”24
24
On December 18, 2012, the BLNR filed a Response Brief (Response),
arguing that the ICA properly determined that the court should not have made
its own determinations by weighing the evidence on appeal, and that regardless
(continued...)
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VII.
Preliminarily, the mootness issue must be addressed,
inasmuch as it affects the relevancy of the proceedings below to
the instant appeal. “The mootness doctrine is said to encompass
the circumstances that destroy the justiciability of a suit
previously suitable for determination.” Wong v. Bd. of Regents,
Univ. of Haw., 62 Haw. 391, 394, 616 P.2d 201, 203 (1980).
Hence, “[a] case is moot if the reviewing court can no longer
grant effective relief.” Kaho#ohanohano v. State, 114 Hawai#i
302, 332, 162 P.3d 696, 726 (2007) (brackets in original)
(citations omitted). However, this court has also “recognized an
exception to the mootness doctrine in cases involving questions
that affect the public interest and are ‘capable of repetition
yet evading review.’” Diamond I, 112 Hawai#i at 170, 145 P.3d at
713 (quoting Okada Trucking Co., Ltd. v. Bd. of Water Supply, 99
Hawai#i 191, 196, 53 P.3d 799, 804 (2002) (citations omitted)).
Petitioners allege in their Questions Presented and in
footnote 3 of their Application, that the court’s May 19, 2010
Judgment entered on the first appeal, No. 30573, is not moot.
(Citing Diamond I, 112 Hawai#i at 171-72, 145 P.3d at 714-15.)
Diamond I addressed a similar factual situation to the one
presented here, involving shoreline certifications. As stated,
24
(...continued)
of Petitioners’ citation to Paul’s Electric, the BLNR should be afforded
deference in its decision based on a multi-variable approach. The Response
also alleged that the ICA properly determined that the BLNR’s Amended Decision
rendered the first appeal moot.
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under the relevant statutory scheme, a particular shoreline
certification is only valid for one year. See HRS § 205A-42
(“[N]o determination of a shoreline shall be valid for a period
longer twelve months.”) In Diamond I, this court considered
whether it could hear an appeal from a decision of the BLNR
related to shoreline certification, despite the fact that the
shoreline certification at issue had expired. 112 Hawai#i at
172, 145 P.3d at 715.
We determined the case was not moot because the
shoreline certification satisfied the elements of the public
interest exception to the mootness doctrine, specifically, it was
“a matter of vast public importance” and was “‘capable of
repetition yet evading review.’” Id. (citing Okada Trucking Co.
v. Bd. of Water Supply, 99 Hawai#i 191, 196-97, 53 P.3d 799, 804-
05 (2002)). Given that any shoreline certification would only be
valid for one year, and that “the appeals process generally takes
more than one year,” Diamond I recognized that appellate review
would be frustrated if it determined that the appeal was moot.
Therefore, Diamond I applied the exception to the mootness
doctrine.
This case is unlike Diamond I with respect to the
mootness issue. None of the parties appear to dispute the issue
of whether this court may hear the appeal from the BLNR’s
ultimate shoreline determination. Instead, the issue is simply
whether this court still must consider the court’s decision on
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appeal from the BLNR’s first shoreline determination, No. 30573.
Here, the BLNR’s May 21, 2010 Amended Decision replaced
the BLNR’s original June 19, 2009 Decision. The issuance of the
Amended Decision effectively “destroyed justiciability” of the
prior appeal from the court’s judgment on the BLNR’s June 19,
2009 Decision, inasmuch as the Amended Decision became the
ultimate agency decision in effect regarding the shoreline
certification on the property. Thus, any appeal from the
original administrative agency Decision in No. 30573 was mooted
because the BLNR’s June 19, 2009 Decision is no longer effective.
Instead, we will review the appeal from the May 21, 2010 Amended
Decision of the BLNR.25
VIII.
Petitioners argue that the ICA failed to consider
Paul’s Electric when discussing what deference the court should
have given to the BLNR. Respectfully, the ICA did err in setting
forth part of its standard of review. In articulating that
standard, the ICA stated that “an appellate court’s review of an
agency decision is ‘qualified by the principle that the agency’s
decision carries a presumption of validity and appellant has the
heavy burden of making a convincing showing that the decision is
25
However, we observe that the BLNR’s June 19, 2009 Decision will be
relevant to the extent necessary to determine the validity of the BLNR’s
Amended Decision, including whether the BLNR complied with the court’s order
on remand. See discussion infra.
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invalid because it is unjust and unreasonable in its
consequences.’” Dobbin, 2012 WL 3792024, at *3 (emphases added)
(quoting Paul v. Dep’t of Transp., 115 Hawai#i 416, 426, 168 P.3d
546, 555 (2007)).
Paul’s Electric, however, clarified several aspects of
the standard for appellate review of administrative agency
actions, including the “presumption of validity”, “heavy burden”,
and “unjust and unreasonable” language set out by the ICA in its
memorandum opinion. See 104 Hawai#i at 417-20, 91 P.3d at 499-
502. This court held in Paul’s Electric, first, that although
“this court has frequently used the ‘unjust and unreasonable’
language as a proxy for the abuse of discretion standard . . .
[,] the ‘unjust and unreasonable’ language has particular
applicability only in the context of decisions of the Public
Utilities Commission . . . .” 104 Hawai#i at 419, 91 P.3d at 501
(emphasis added). See also Nakamura v. State, 98 Hawai#i 263,
274-75, 47 P.3d 730, 741-43 (2002) (Acoba, J., concurring and
dissenting) (observing that the history of the “unjust and
unreasonable” language demonstrates its inapplicability to cases
not involving the Public Utilities Commission. (citing In re
Application of Kauai Elec. Div. of Citizens Utilities Co., 60
Haw. 166, 179, 590 P.2d 524, 535 (1978))). Since this case does
not involve the Public Utilities Commission, the “unjust and
unreasonable” language is not applicable here. Second, Paul’s
Electric held, with respect to the phrase, “the agency’s decision
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carries a presumption of validity and appellant has the heavy
burden of making a convincing showing[,]” that “[a]gency
determinations, even if made within the agency’s sphere of
expertise, are not presumptively valid[.]” Id. (emphases added);
see also Nakamura, 98 Hawai#i at 273, 47 P.3d at 740 (Acoba, J.,
concurring dissenting) (“Presuming the validity of the [agency’s]
decision as to credibility and weight, or because of its
‘expertise,’ undermines the clearly erroneous rule imposed by
[HRS § 91-14(g)(5)].”). Thus, the language regarding the
presumptive validity of an agency determination is not applicable
in the instant case either. Therefore, in light of this court’s
holding in Paul’s Electric, the ICA and Respondents erred when
they articulated that standard of review.
Notwithstanding that error, the ICA correctly
articulated the “clearly erroneous” standard with respect to the
court’s findings, see Hawaii Teamsters, 110 Hawai#i at 265, 132
P.3d at 374, and de novo review with respect to the court’s
conclusions of law, id.; see also Lanai Co. v. Land Use Comm’n,
105 Hawai#i 296, 307, 97 P.3d 372, 383 (2004) (“The courts may
freely review an agency’s conclusions of law.”) (brackets,
internal quotation marks, and citation omitted). Accordingly, we
will review the court’s findings of fact under the “clearly
erroneous” standard and its conclusions of law under the de novo
standard, without any particularized presumption of validity or
need to consider whether the agency’s decision was “unjust and
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unreasonable.” See Paul’s Electric, 104 Hawai#i at 418-20, 91
P.3d at 499-502.
IX.
Petitioners’ first question presented also appears to
challenge the ICA’s conclusion that “[t]he [] court erred in
substituting its judgment for [the] BLNR.” Dobbin, 2012 WL
3792024, at *5 (emphasis added). It is well-established that
when a circuit court reviews an agency determination under HRS §
91-14, that court acts as an appellate court. Pursuant to HRS §
91-14(f), a review of an agency decision “shall be conducted by
the appropriate court . . . and shall be confined to the record.”
Under HRS § 91-14(g), findings of fact are reviewable as to
whether an agency’s decision is clearly erroneous in view of
reliable, probative, and substantial evidence on the whole
record. Morimoto v. Bd. of Land & Natural Res., 107 Hawai#i 296,
302, 113 P.3d 172, 178 (2005).
Respectfully, the court went beyond determining whether
particular conflicting findings were clearly erroneous, and
instead made its own factual findings on appeal from the BLNR’s
Amended Decision.26 The court did not err in stating its
26
In its Opening Brief to the ICA, the BLNR argues that the court
erred in considering the evidence attached by Petitioners to their brief to
the court on appeal. The BLNR states that, “[a]lthough the declarations
appear to be the same declarations that were submitted in [Petitioners’]
briefs before the [BLNR], no statement to that effect was contained in any of
the [Petitioners’] briefs submitted to the [] court.” The appendix material
provided by the Petitioners was identical to that in the record on appeal,
however, and thus, although the court failed to cite to the record and instead
cited to the appendices to the briefs, any error on the part of the court was
harmless.
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conclusions, however, as those adhered to the standards for
appellate review as set forth above. For example, unlike the
court’s findings, which are designated in its decision as
“Findings of Fact,”27 the court’s conclusions state that
particular findings from the BLNR’s Amended Decision were
“clearly erroneous.” However, as discussed infra, the court was
correct in holding that certain findings in the BLNR’s Amended
27
The court articulated these factual determinations in the
following findings in its February 16, 2011 decision on the second appeal:
32. Subsequent to the planting of the naupaka
and beach heliotrope trees, [Petitioners] also
observed and photographed irrigation lines on Lot 12,
which were used to water the newly planted vegetation.
[]
33. The vegetation planted on Lot 12 during
December, 2003, and January and February, 2004 has
been artificially induced by human intervention and
does not represent evidence of the shoreline.
. . . .
36. The beach fronting [the property] is
currently covered with salt tolerant naupaka and beach
heliotrope trees planted by the prior owner to create
an artificial shoreline.
39. The naupaka and beach heliotropes planted
on [the property] act as a barrier that prevents
and/or hinders the observation of the true debris line
that evidences the “upper reaches of the wash of the
waves at high tide during the season of the year in
which the highest wash of the waves occurs.”
40. The evidence submitted by the
[Petitioners], including the photographs, clearly
shows that the “upper reaches of the wash of the
waves, other than storm and seismic waves, at high
tide during the season of the year in which the
highest wash of the waves occurs” reaches further
mauka onto [the property] than the BLNR’s “current”
location of the shoreline at the “dune crest.”
(Emphases added.)
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Decision were clearly erroneous.28
X.
To reiterate, HRS § 205A-42(a) states that:
The [BLNR] shall adopt rules pursuant to chapter 91
prescribing procedures for determining a shoreline and
appeals of shoreline determinations that are consistent with
subsection (b); provided that no determination of a
shoreline shall be valid for a period longer than twelve
months, except when the shoreline is fixed by artificial
structures that have been approved by appropriate government
agencies and for which engineering drawings exist to locate
the interface between the shoreline and the structure.
(Emphasis added.) The rules adopted by the BLNR are also subject
to the definition of “shoreline” in HRS § 205A-1. The
regulations promulgated by the BLNR as to shoreline
certifications can be found at HAR chapter 13, subchapter 222.
In deference to the statutory definition, HRS § 13-222-2 defines
“shoreline” the same as HRS § 205A-1 does. A “‘[s]horeline
certification’” is defined as “a signed statement by the
chairperson of the [BLNR] that the shoreline is as located and
shown on the map as of a certain date.” HRS § 13-222-2.
While HRS § 205A-42 limits the validity of a shoreline
certification to one year, a particular certification may have
consequences lasting beyond one year, because the purpose of a
shoreline determination is “to standardize the application
28
In the court’s conclusion 1, it indicated that the BLNR’s findings
27, 34, 35, 36, 38, 40, 41, 46, 48, 50, 51, 52, 53, 56, 58, 59, 60, 66, 68,
69, 70, 72, and 73 in the BLNR’s Amended Decision were “clearly erroneous in
view of the reliable, probative and substantial evidence on the whole record.
The court also stated, at conclusion 2, that the BLNR’s conclusions 4, 9, 10,
and 11 were “in violation of HRS § 205A-1, in excess of the BLNR’s statutory
authority or jurisdiction, affected by other errors of law, and clearly
erroneous in view of the reliable, probative and substantial evidence on the
whole record.” Some, but not all, of the findings that the court indicated
were clearly erroneous are addressed infra.
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procedure for shoreline certifications for purposes of
implementing the shoreline setback law and other related laws.”
HAR § 13-222-1 (emphasis added). As related, “shoreline setback
lines” are established running parallel to the “shoreline[,]” as
certified by the BLNR. See HRS § 205A-43(a) (1993) (“Setbacks
along shorelines are established of not less than twenty feet and
not more than forty feet inland from the shoreline.”). The
“shoreline setback lines”, in turn, dictate where certain
structures can be built in relation to the seashore. See HRS §
205A-44 (stating that “[e]xcept as provided in this section,
structures are prohibited in the shoreline area without a
variance pursuant to this part.”). Thus, if the shoreline
setback line is dependent upon the shoreline certification, then
structures may or may not be built in a particular area depending
on where that certification is located. Such structures would
presumably be in existence for more than one year. Hence, the
shoreline determination can be a significant designation,
resulting in ramifications for more than just one year.
Moreover, the location of a “shoreline” can be relevant
to the well-established public right of access to Hawai#i’s
shorelines. See HRS § 115-4 (1993) (providing for the right of
transit along the shorelines). HRS § 115-5(a) (1993) states that
“[t]he right of transit shall exist seaward of the shoreline and
this area shall be defined as a beach transit corridor. For
purposes of this section, ‘shoreline’ shall have the same meaning
as in section 205A-1.” (emphasis added). The right of the public
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to access a beach transit corridor is not at issue in this case.
However, inasmuch as the definition of “shoreline” is identical
for purposes of both statutes, an agency’s interpretation of that
definition in shoreline certification cases may ultimately impact
the ability of the public to access certain areas along the sea.
XI.
As explained infra, it is axiomatic that the “long-
standing public use of Hawaii’s beaches . . . has ripened into a
customary right”, and that accordingly, “public policy . . .
favors extending public use and ownership to as much of Hawaii’s
shoreline as is reasonably possible.” Sotomura, 55 haw. at 182,
517 P.2d at 61-62. The decisions of this court regarding the
location of the shoreline, of which Diamond I is the latest,
reflect these principles. Correspondingly, we turn to such
propositions for guidance in evaluating the instant case.
In 1968, this court issued Ashford, an opinion by Chief
Justice Richardson, which set forth many of the foundations
underlying future shoreline determinations. Ashford considered
the location of a property that was described in the royal
patents as running “ma ke kai,” or “along the sea”. 50 Haw. at
314, 440 P.2d at 77. The appellee contended that the phrase
described the boundary represented “by the intersection of the
shore and the horizontal plane of mean high water based on
publications of the U.S. Coast and Geodetic Survey.” Id. at 77,
440 P.2d at 314-15. This court disagreed, instead holding that
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“me kai kai” was “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[.]” 50 Haw. at 315, 440 P.2d
at 77. Ashford also held that the testimony of “[t]wo
kama#aina[29] witnesses, living in the area of appellees’ land,”
was relevant to determining the shoreline property boundary. Id.
at 316, 440 P.2d at 77-78. The shoreline boundary designation
stated in Ashford as “the upper reaches of the wash of the
waves,” was later codified in HRS chapter 205A. 1975 Haw. Sess.
Laws Act 176, § 1 at 386.
In 1973, in Sotomura, another opinion by Chief Justice
Richardson, the boundaries of a property were again at issue. 55
Haw. at 178. 517 P.2d at 59. A county surveyor located the
seaward boundary “between the private upland and public beach” at
“the upper reaches of the wash of the waves”, which he determined
was along the debris line, in accordance with Ashford. Id. at
180, 517 P.2d at 61. The land court agreed. Id.
Importantly, Sotomura stated that “[t]he Ashford
decision was a judicial recognition of long-standing public use
of Hawaii’s beaches to an easily recognizable boundary that has
ripened into a customary right.” Id. at 181-82, 517 P.2d at 61
(citation omitted). It further established that “[p]ublic
policy, as interpreted by this court, favors extending to public
29
“Kama#aina” can be defined as “[n]ative-born, one born in a place,
host; native plant; acquainted, familiar.” Pukui & Elbert, Hawaiian
Dictionary at 124.
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use and ownership as much of Hawaii’s shoreline as is reasonably
possible.” 55 Haw. at 181, 517 P.2d at 61-62 (emphasis added).
In accordance with these principles, then, Sotomura held as a
matter of law that “where 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.” Id. at 182, 517 P.2d at 62 (emphases
added).
This line of cases was extended by Diamond I, which
further clarified the definition of “shoreline,” first set forth
in Ashford and currently defined in HRS § 205A-1 and HAR § 13-
222-2, with respect to shoreline determinations made pursuant to
HRS § 205A-42. 112 Hawai#i at 174, 145 P.3d at 718. The
shoreline certification at issue in Diamond I was for another
property in the same subdivision as the property in the instant
case. Id. at 164, 145 P.3d at 707. After a 2002 survey and
shoreline determination by the BLNR, the plaintiffs in Diamond I
appealed, and the BLNR entered its “Findings of Fact, Conclusions
of Law, and Decision and Order” stating, inter alia, as follows:
63. Naupaka is an ideal indicator of the upper wash of
the waves because of its salt tolerance and ability to
withstand occasional salt water inundation, such as
may be found in storm or other unusually high wave
conditions, while not surviving if constantly
inundated or subjected to ripping or undermining by
wave action.
. . . .
78. The practice of the State Surveyor is to use the
line of vegetation where present, and not the line of
debris, as evidence of the upper wash of the waves,
due to the [sic] greater stability.
. . . .
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11. The edge of the vegetation growth is the best
evidence of the shoreline in this case . . . as
against a debris line which may change from week to
week or from day to day.
. . . .
18. The . . . field survey was correct because,
among other things: (1) the age of the vegetation
around the stakes indicated that it was naturally
rooted and growing; (2) there was no evidence that the
vegetation was being artificially maintained . . . [.]
Id. at 166-67, 145 P.3d at 709-10 (emphases added). The
contested shoreline certification then expired, a new application
was filed in 2003, and the BLNR certified the shoreline at the
same location. Id. at 167, 145 P.3d at 710. The plaintiffs
appealed this proposed certification, and the BLNR filed an Order
Denying Appeal, that stated, in relevant part,
Stable vegetation are plants that, without continued
human intervention, are well-established and would not
be uprooted, broken off, or unable to survive the
occasional wash or run-up of waves.
The fact that at one time the vegetation here
was planted by human hands does not nullify the use of
the stable vegetation line to determine the location
of the shoreline for certification purposes.
Vegetation that, even though originally induced, is
able to survive through the seasons over several years
without human intervention provides a good indication
of the location of the shoreline.
Id. (emphases added).
In support of its actions, the BLNR had argued that
Sotomura indicated that the vegetation line was the more stable
indicator of the shoreline and thus should be prioritized in all
cases when making shoreline determinations. Id. at 169, 145 P.3d
712. Diamond I disagreed, holding instead that as a matter of
statutory interpretation, the plain language of HRS § 205A-130
30
The last clause in the definition of “shoreline” was at issue in
Diamond. 112 Hawai#i at 171, 145 P.3d at 714. To reiterate, HRS § 205A-1
states:
(continued...)
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required that the shoreline should be “certified at the highest
reach of the highest wash of the waves[,]” whether that was
indicated by the debris line or the vegetation line. Id. at 173,
145 P.3d at 716 (emphasis added). It also held that this
interpretation was consistent with Sotomura, inasmuch as the
statement in Sotomura that the vegetation line is a “more
permanent monument,” supported the Sotomura court’s decision to
use the vegetation line because it was the furthest mauka. Id.
at 175, 145 P.3d at 718.
Thus, Diamond I concluded that Sotomura does not
indicate that the vegetation line will always prevail over the
debris line. Id. Instead, the court in Diamond held that “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,” if that vegetation line is further mauka
than the debris line. Id. at 174, 145 P.3d at 717.
Diamond I also considered the type of “vegetation
growth” that can constitute a “vegetation line” for purposes of
evidencing the shoreline. Id. at 175, 145 P.3d at 718. The
vegetation at issue in Diamond I was naupaka, the same type of
30
(...continued)
“Shoreline” means the upper reaches of the wash of the
waves, other than storm and seismic 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 vegetation growth, or the upper limit of
debris left by the wash of the waves.
(Emphasis added.)
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vegetation at issue in the instant case. Id. at 166, 145 P.3d at
709. “Vegetation line” was defined in HAR § 13-222-2, as “‘any
plant, tree, shrub, grass or groups, clusters, or patches of the
same, naturally rooted and growing.’” Id. (emphasis in
original). In connection with whether the BLNR was correct in
deciding that artificially induced naupaka could constitute a
“vegetation line,” this court noted that “‘the agency’s decision
must be consistent with the legislative purpose[]’” of HRS
Chapter 205A. Id. (quoting Camara v. Agsalud, 67 Haw. 212, 216,
685 P.2d 794, 797 (1984)).
Diamond I then reviewed the objectives and policies of
HRS chapter 205A, including “to ‘[p]rotect beaches for public use
and recreation[,]’” id. (brackets in original) (quoting HRS §
205A-2(b)(9)) and to:
“(A) Locate new structures inland from the shoreline
setback to conserve open space, minimize interference
with natural shoreline processes, and minimize loss of
improvements due to erosion;
(B) Prohibit construction of private, erosion
protection structures seaward of the shoreline, except
when they result in improved aesthetic and engineering
solutions to erosion at the sites and do not interfere
with existing recreational and waterline
activities[.]”
Id. (brackets in original) (quoting HRS § 205A-2(c)(9)).
Diamond I concluded that “[t]he utilization of
artificially planted vegetation in determining the certified
shoreline encourages private land owners to plant and promote
salt tolerant vegetation to extend their land further makai[.]”
Thus, Diamond I held, “[m]erely because artificially planted
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vegetation survives more than one year does not deem it
‘naturally rooted and growing’ such that it can be utilized to
determine the shoreline.” Id. (emphasis added). Diamond I
overturned the BLNR’s order denying appeal in that case, noting
that the order had “explicitly rejected the placement of the
shoreline at the highest wash of the waves during high season[,]”
and instead located the shoreline at the vegetation line,
notwithstanding the possibility that a debris line may have been
more representative of the highest wash of the waves, and the
fact that the vegetation had been planted and irrigated. Id. at
176, 145 P.3d at 719.
XII.
In Petitioners’ second question, they challenge the
merits of the BLNR’s shoreline determination decision. As to
this question, we conclude that the BLNR’s ultimate shoreline
determination is invalid because the agency made errors of fact
and errors of law in its Amended Decision. The BLNR’s errors of
law are discussed first. Under HRS § 91-14(g), conclusions of
law are reviewable for whether they are in violation of
constitutional or statutory provisions; are in excess of the
statutory authority or jurisdiction of the agency; or are
affected by other error of law. See Korean Buddhist Dae Won Sa
Temple of Hawaii v. Sullivan, 87 Hawai#i 217, 229, 953 P.2d 1315,
1327 (1998) (citing HRS § 91-14(g)).
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A.
The BLNR’s first error of law was with respect to its
use of historical evidence. We conclude that the BLNR must
consider historical evidence in making its shoreline
determination. The BLNR apparently concedes this point, but in
its first decision did not take into consideration any evidence
beyond the one year’s wash of the waves.31
The BLNR failed to properly follow the court’s
instruction on remand that HRS § 205A-1 does not limit the
agency’s analysis of the upper reaches of the wash of the waves
“for only the ‘current’ season . . . .”32 As noted, in its April
6, 2010 decision on the first appeal, the court stated that
“[t]he BLNR’s interpretation of HRS § 205A-1, [] that only the
‘current’ year’s evidence of the upper reaches of the wash of the
waves should be considered in determining the shoreline . . .
conflicts with and/or contradicts the purpose and intent of HRS §
31
Although we determined that the appeal from the BLNR’s first
decision is moot, as observed supra, we may consider the BLNR’s first decision
for purposes of determining the validity of the BLNR’s Amended Decision.
32
In COL No. 5 of the BLNR’s Amended Decision, it quotes the
relevant statute and regulation to define “shoreline” as: “[T]he upper wash of
the waves, other than storm and seismic waves . . . .” (Emphasis added.) The
correct definition, in relevant part is that “‘[s]horeline’ means the upper
reaches of the wash of the waves, other than storm and seismic waves . . . .”
HRS § 206A-1; HAR § 13-222-2 (emphasis added).
It is worth noting that the word “reaches” in this context would
mean “to extend to” or “to get up to or as far as”. Merriam Webster’s
Collegiate Dictionary 972 (10th ed. 1993). Moreover, “reaches”, in plural,
suggests more than one wash of the waves, and thereby is consistent with the
requirement, discussed infra, that the agency consider historical evidence of
the wash of the waves.
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205A-1 [].”33 At the oral argument on the second appeal to the
court, the court discussed with the BLNR’s attorney whether the
agency had in fact taken into account historical evidence of the
upper reaches of the wash of the waves.
THE COURT: Okay. So you would agree with
[Petitioners’ attorney] then that the certification
itself lasts for one year, however, the State is not
restricted to looking at data for that one year period
only?
[Counsel for BLNR]: Oh, yeah --
THE COURT: You would agree with him?
[Counsel for BLNR]: Yeah, I agree that we’re
not restricted to looking at only that one year period
and we have not restricted the, you know, the evidence
that they’ve considered to a one year period, because
I think even in the surveyor’s report there’s a
statement that says, you know, the past historical
data used to -- to indicate the change in condition or
the conditions of the shoreline, you know, so, it may
not be used to say, well, the shoreline, you know, was
here five years ago so it should be here now. But
it’s used to show how the shoreline is moving in that
area and what the trends in that area are.
THE COURT: Then given that position, I would
assume then that the State would consider 12 years’
worth of people who live in the area and pictures that
they’ve taken of the shoreline.
[Counsel for BLNR]: They -- we’re not
disagreeing that that kind of evidence is relevant and
that it should be looked at. We don’t disagree with
that. I think the problem is that the evidence that
was presented in this particular case was not -- was
not probative because it didn’t -- it didn’t contain,
I guess enough -- it wasn’t substantial enough.
(Emphases added.)
Contrary to what counsel suggested in oral argument,
the BLNR did not fully consider historical evidence when it made
33
As indicated, the BLNR argued before the court on both appeals,
and to the ICA, that its interpretation of HRS § 205A-1 required that only the
“current year’s” evidence of the highest wash of the waves be taken into
account in making a shoreline determination. However, in its Response to this
court, the BLNR does not argue its earlier interpretation of HRS § 205A-1, but
rather states that “[t]he ICA properly determined that the ‘BLNR did not
restrict its analysis of the upper reaches of the waves to the current year,
but rather took into evaluation all relevant factors present on the
[p]roperty.’” (Quoting Dobbin, 2012 WL 3792024, at *5) (internal quotation
marks and brackets omitted).
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the findings in its Amended Decision. Although it removed the
findings from its initial decision discussing only the “current
year’s” wash of the waves, the BLNR’s discussion of historical
evidence in its Amended Decision appears to be a post hoc
justification of its earlier decision.
In its first decision, the BLNR adopted the State
Surveyor’s recommendation in full. In that decision, the BLNR
stated that it did not consider historical evidence other than
the current year’s wash of the waves. In fact, the BLNR stated
in its first decision that “given the variable and temporary
nature of shorelines, [Petitioners’] insistence on solely
utilizing historical evidence in the determination of a shoreline
may result in inaccurately locating the upper reaches of the wash
of the waves in a given year.” (Emphasis added.)
However, in its Amended Decision, the BLNR stated that
the State Surveyor’s initial recommendation from his May 28, 2008
letter was “based, at least in part, on the Galloway
[A]pplication . . . [,]” despite the fact that the Galloway
Application was not mentioned at all in the BLNR’s first
decision. If, in fact, the State Surveyor had considered the
Galloway Application as historical evidence, his recommendation,
which the BLNR purportedly adopted in its first decision as the
appropriate shoreline location, would be based on factors that
were inconsistent with the approach to shoreline certification
that the BLNR articulated in its first decision. In other words,
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in its first decision, the BLNR stated that only the current
year’s evidence could be considered in making shoreline
determinations, but in its Amended Decision, it maintained that
historical evidence had in fact been considered in its first
decision setting forth the proposed shoreline.
The Amended Decision also improperly limited its
consideration of “historical evidence” to the past two winters.
With respect to the evidence of the Galloway Application, it
stated that, “[t]he 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.” (Emphasis added.)
However, the court’s decision on the first appeal stated several
times that Petitioners had observed the shoreline for the past
eight years. This statement from the court’s findings, combined
with the court’s mandate that the BLNR consider more than just
the “current year’s” evidence of the highest wash of the waves,
indicates that the court instructed the BLNR to consider all
historical evidence, rather than just the historical evidence
that the BLNR felt was appropriate. Thus, where there was
evidence of prior years’ “wash of the waves,” the agency must
consider the evidence from those years when making the shoreline
determination.
This comports not only with the instructions of the
court on remand, but also with this court’s decision in Ashford,
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which held that “reputation evidence by kama#aina witnesses” must
be allowed in determining the “public and private boundary
dividing private land and public beaches.” Ashford, 50 Haw. at
317, 145 P.3d at 718. Thus, the BLNR was wrong when it used only
the historical evidence from the two preceding winter seasons to
determine the “highest wash of the waves,” rather than evaluating
historical evidence of the past eight years for which Petitioners
provided testimony of their observations. HRS § 205A-1. We
therefore also expressly reject Dobbin and Wagner’s contention
that “the ultimate determination of the upper reaches of the wash
of the waves at high tide . . . is [solely] one for experts and
those qualified under the law.” This is wrong as a matter of
law.
B.
Second, in the instant case, the BLNR’s Amended
Decision posits a “multi-variable” approach to shoreline
certifications, as set forth in the following findings:
24. It is the current practice of the DLNR and the
State Surveyor to use a multi-variable approach to
determining the location of the upper wash of the
waves for shoreline certification purposes. The
multi-variable approach takes into consideration all
pertinent and appropriate evidentiary factors in a
shoreline setting, based on the shoreline type (sand
beach, perched beach, cliff, rocky shoreline, etc., or
a combination thereof), location (north-, south-,
east-, or west-facing shore), and exposure to large
waves (protected within a cover or a bay or by rock
outcroppings or reefs, or located within the
protective shadow of other islands, versus exposed to
the open ocean).
25. Some of the evidential variables used by the
DLNR and State Surveyor include, without limitation,
debris lines, vegetation lines, wet lines, artificial
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structures, dune crests, erosion scarps, salt
deposits, discoloration, and saltwater-dependent
biota.
26. The DLNR and State Surveyor also consider other
features or facts unique to each shoreline and makes
appropriate adjustments to the interpretation of the
evidence as those features or facts are determined by
the DLNR and State Surveyor to affect the natural
movement of the wash of the waves within the subject
shoreline area. Such features and facts include the
presence and effect of artificially induced vegetation
or artificially created topographic anomalies that are
not representative of the overall trends of the
natural shoreline in the subject shoreline area.
27. The DLNR and State Surveyor also incorporate in
their shoreline determination, any pertinent
information about the shoreline that is presented by
the owner of the subject property and any other member
of the public that has personal knowledge and
familiarity with the shoreline conditions of the
subject property during high surf conditions in the
season of high surf.
(Emphases added.)
This multi-variable approach is not described in the
statute or in the relevant case law. The approach the BLNR
should have followed is set out in HRS § 205A-1, defining
shoreline, and this court’s jurisprudence. See Diamond I, 112
Hawai#i at 172-73, 145 P.3d 715-16 (holding that where the
shoreline is marked by both a vegetation line and a debris line,
the line further mauka is used to locate the shoreline);
Sotomura, 55 Haw. at 181-82, 517 P.2d at 61-62 (locating a ‘high
water mark’ property boundary at the vegetation line where that
line was further mauka); Ashford, 50 Haw. at 316, 440 P.2d at 78
(holding that the location of the boundary dividing private land
from public beaches “was along the upper reaches of the waves as
represented by the edge of vegetation or the line of debris.”).
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Any factors identified by the BLNR must be consistent with our
case law, and require that the shoreline be located at the
debris line or vegetation line, whichever is furthest mauka.
Diamond I, 112 Hawai#i at 172, 145 P.3d at 715. Any approach
undertaken by the BLNR must be executed in accordance with this
basic precept. See id. at 169, 145 P.3d at 712 (holding that
“‘the Ashford decision was a judicial recognition of the long-
standing public use of Hawai#i’s beaches to an easily
recognizable boundary that has ripened into a customary right[,]”
and accordingly, the boundary markers for the shoreline must be
“‘easily recognizable’” and “‘known to the people living thereon
or in the neighborhood.’”) (emphasis in original) (quoting
Sotomura, 55 Haw. at 181-82, 517 P.2d at 61)).
C.
1.
Third, pursuant to Diamond I, “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. 112 Hawai#i at 175, 145 P.3d at 718. Although in
this case there is a dispute over the extent to which the plants
were artificially induced, it is undisputed that salt-tolerant
plants were in evidence on the property. However, the BLNR’s
Amended Decision does not indicate how it considered the presence
of these salt-tolerant plants in making its decision. On remand,
the BLNR must comply with Diamond I’s holding that does not allow
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the use of salt-tolerant vegetation as an indication of the
“vegetation line.” Id.
2.
Relatedly, there is also no indication in the Amended
Decision of whether the BLNR took artificial barriers into
consideration. In Diamond I, this court instructed that one of
the objectives of HRS chapter 205A was to “‘[p]rohibit
construction of private erosion-protection structures seaward of
the shoreline, except when they result in improved aesthetic and
engineering solutions to erosion at the sites and do not
interfere with existing recreational and waterline activities.’”
Id. (quoting HRS § 205A-2(c)(9)). Diamond I barred the use of
artificially induced plants as an indication of the shoreline,
because the use of such a false vegetation line in making a
shoreline determination would allow landowners to effectively
erect an artificial “barrier” extending their land further makai.
Id. This would be contrary to the objectives behind HRS chapter
205A. Yet, the BLNR’s Amended Decision is bereft of any
indication of how the policies of HRS § 205A-2(c)(9)34 have been
enforced, reflecting a disregard of the standards set forth in
Diamond I, Sotomura, and Ashford.
34
HRS § 205A-2 (Supp. 2001) sets forth the objectives and policies
for the Coastal Zone Management Program. Among these is HRS § 205A-
2(c)(9)(D), which states that in connection with beach protection, it is a
policy to “[p]rohibit private property owners from creating a public nuisance
by inducing or cultivating the private property owner’s vegetation in a beach
transit corridor.”
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HAR § 13-222-2 defines “vegetation growth” as “any
plant, tree, shrub, grass or groups, clusters, or patches of the
same, naturally rooted and growing.” (Emphasis added.) The
BLNR’s decision did not take this definition, specifically the
“naturally rooted and growing” portion, into consideration when
it decided the naupaka and other plants could be used as an
indicator of the shoreline. Both sides submitted evidence on
this issue, and at FOF No. 69, the BLNR concluded that “Appellees
Dobbin and Wagner’s Opening Brief [sic] [to the BLNR] refuted the
assertions that the vegetation growing along the shoreline was
planted and ‘induced’ with the aid of irrigation.”
But, there was no support for this finding. The BLNR
cited to Dobbin and Wagner’s Answering Brief, which stated only
that the sprinklers located on the property were not “aimed
towards nor intended to irrigate the naturally growing shoreline
vegetation.”35 However, in order to determine whether the
vegetation was “naturally rooted and growing” in accordance with
the HAR § 13-222-2 definition, the BLNR must determine that the
shoreline vegetation was actually “naturally growing”, which
requires more than a conclusion that the sprinklers were not
“aimed at or intended to irrigate” the vegetation. If the
sprinklers’ action actually resulted in watering the vegetation
as a result of the wind or other natural factors, then it is of
35
There was also some inconsistency between the affidavits provided
by Respondents regarding the location of the sprinklers.
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no import whether the sprinklers were not “intended to irrigate”
the vegetation.
3.
Moreover, in this case, the BLNR Amended Decision
states only that the State Surveyor and DLNR considered “the
presence and effect of artificially induced vegetation or
artificially created topographic anomalies[.]” It is not evident
from the decision how the presence of potentially artificial
barriers affected the BLNR’s determination of the “highest wash
of the waves.” HRS § 205A-1. See Kilauea Neighborhood Ass’n v.
Land Use Comm’n., 7 Haw. App. 227, 230, 751 P.2d 1031, 1034
(1988) (“An agency’s findings must be sufficient to allow the
reviewing court to track the steps by which the agency reached
its decision.”); In re Water Use Permit Applications, 105 Hawai#i
1, 27, 93 P.3d 643, 669 (2004) (Acoba, J., concurring) (“The
purpose behind findings is to assure reasoned decision making by
the agency and enable judicial review of agency decisions.”
(internal quotation marks and citations omitted)).
Additionally, the BLNR’s Amended Decision locates the
shoreline at “the makai edge of the hedge.” According to the
BLNR’s finding 36(e), this is the area where naupaka and beach
heliotrope are located, along with debris. Diamond I mandates
that, as between the debris and the vegetation line, the
shoreline must be located at the line that is further mauka. 112
Hawai#i at 174-75, 145 P.3d at 717-18. The Amended Decision
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states at finding 61 that, “[Petitioners] argued that the use of
naupaka or other salt tolerant plants to create an artificial
shoreline prevents or hinders the observation of the true
evidence of the debris line created by the upper wash of the
winter waves.” Petitioner Diamond’s Declaration also states that
“[a]t the site visit on April 18, 2008, I pointed out the current
condition of the naupaka as obvious evidence that the highest
wash of waves had in fact washed through and into the planted
vegetation.”
However, in its Amended Decision, the BLNR seemingly
did not take into account whether the debris line was located at
the same place as the vegetation line because the debris line
was, as Petitioners suggest, being hindered by the presence of
salt-tolerant vegetation. Although the Amended Decision suggests
that debris is located in the vegetation, it included no findings
as to whether the vegetation line or the debris line is located
further mauka. It would be contrary to Diamond, the policy
articulated in Sotomura, and the legislative purpose behind HRS
chapter 205A, as noted supra, to locate the shoreline where salt-
tolerant plants had been grown and had prevented a debris line
from forming that was indicative of the true “highest wash of the
waves.”
D.
Fourth, the BLNR apparently disregarded the Wichman
testimony submitted by Petitioners, on the basis that first, it
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“was not in the form of an affidavit or declaration,” second, it
“was not attested to by anyone nor was any context for the
document provided by [Petitioners],” and third, that “[i]t is not
clear from the document or [Petitioners’] Opening Brief [to the
BLNR] whether the person who allegedly authored the document is
an expert or what his expertise might be, if any.” The BLNR’s
disregard for this testimony is manifestly contrary to HRS
chapter 91.
A shoreline determination is a contested case hearing.
See Diamond I, 112 Hawai#i at 165, 145 P.3d at 708. With respect
to evidence adduced in contested case hearings, HRS § 91-10
(Supp. 2003) provides in relevant part that:
In contested cases:
(1) Except as provided in section 91-8.5[ 36], any oral or
documentary evidence may be received, but every agency shall
as a matter of policy provide for the exclusion of
irrelevant, immaterial, or unduly repetitious evidence and
no sanction shall be imposed or rule or order be issued
except upon consideration of the whole record or such
portions thereof as may be cited by any party and as
supported by and in accordance with the reliable, probative,
and substantial evidence.
(Emphases added.) The BLNR made an implicit finding that the
Wichman testimony was not reliable, apparently because of the
format of the document. But it is elemental that contested case
hearings do not require that evidence presented to the BLNR must
be in the form of an affidavit or declaration, or “attested to.”
Instead, under the statute, “any oral or documentary evidence may
36
HRS § 91-8.5 (Supp. 2003) is not relevant to this case.
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be received” unless such evidence is “irrelevant, immaterial, or
unduly repetitious”. HRS § 91-10. There is nothing in the
record to indicate that the Wichman testimony was “irrelevant,
immaterial, or unduly repetitious.” The BLNR erred as a matter
of law in entirely disregarding the testimony.
Additionally, the BLNR’s findings of fact with respect
to Wichman’s testimony are clearly erroneous. The BLNR states
that “it is not clear . . . whether the person who allegedly
authored the document is an expert or what his expertise might
be, if any.” First, it would not necessarily matter whether
Wichman was an expert.37 Pursuant to this court’s decision in
Ashford, the testimony of kama#aina witness is relevant in
locating the shoreline, and Wichman stated that “[a]ll [his] life
[he] has been an active surfer, diver and fisherman and know[s]
[sic] the ocean and beaches here in Ha#ena and Wainiha very
well.”
Second, the Wichman testimony states that he has worked
for the National Tropical Botanical Garden since 1976, and is the
director of the Limahuli Garden and Preserve. Under these
circumstances, the BLNR’s outright dismissal of the Wichman
37
In the BLNR’s first decision, its findings state that “[w]hile Mr.
Wichman’s testimony appears to be presented as expert testimony regarding
vegetation, there is no evidence that he is qualified to testify as an expert
on such features as the ‘highest wash of the waves’ that are determined by
coastal geology or ocean dynamics.” The BLNR gives no indication of why the
Wichman testimony could no longer be deemed “expert testimony” when it made
its Amended Decision. Thus, the notion that Wichman’s testimony was not
“expert” appears to be a post hoc justification to disregard that testimony
altogether.
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testimony, because “[i]t is not clear . . . whether the person
who allegedly authored the document is an expert or what his
expertise might be, if any[,]” is not only clearly erroneous, but
manifestly wrong as a matter of law. See Ashford, 50 Haw. at
316, 440 P.2d at 77 (holding that “Hawaii’s land laws are unique
in that they are based on ancient tradition, custom, practice,
and usage[,]” and therefore, reputation evidence by kama#aina
witnesses may be used in land disputes).
XIII.
A.
The ICA also erred in vacating the court’s decision and
affirming the BLNR’s Amended Decision because, as the court
observed, many of the agency’s findings of fact were clearly
erroneous in view of the reliable, probative, and substantial
evidence in the whole record. See HRS 91-14(g)(5). A finding of
fact is “clearly erroneous” when “‘(1) the record lacks
substantial evidence to support the finding or determination, or
(2) despite substantial evidence to support the finding or
determination, the appellate court is left with the definite and
firm conviction that a mistake has been made.’” Del Monte Fresh
Produce, Inc. v. Int’l Longshore & Warehouse Union, Local 142,
112 Hawai#i 489, 499, 146 P.3d 1066, 1076 (2006) (quoting In re
Water Use Permit Applications, 94 Hawai#i 97, 119, 9 P.3d 409,
431 (2000)). To determine whether evidence is substantial
evidence, it must be “credible evidence which is of sufficient
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quality and probative value to enable a person of reasonable
caution to support a conclusion.” Id. (internal quotation marks
and ciatations omitted).
B.
In the instant case, the BLNR made a number of clearly
erroneous findings with respect to Petitioners’ declarations and
the attached photographs. Findings 48 through 56, discussing the
evidence presented by Petitioners, are incorrect and/or
inconsistent and thus undermine the final determination by the
BLNR. First, finding 52 stated that “[the Blair declaration] did
not contain any information as to the dates when specific
photographs were taken or who took the photographs.” This is
clearly erroneous in light of the Blair declaration, which
stated, inter alia, that “[t]he photograph attached hereto as
Exhibit ‘E’ was taken on October 19, 2005, and shows Chris L.
Conger identifying the location of the shoreline as recommended
by the State Surveyor on October 19, 2005.” (Emphasis added.)
The BLNR’s finding 51 stated that “it is not possible to
ascertain from [the Blair declaration] what was the object of the
specific photographs or what they were purported to portray.
(Emphasis added.) To the contrary, the Blair declaration stated
that “the photographs attached hereto as Exhibits ‘G’ through ‘N’
are true and correct copies, and accurately show the upper
reaches of the waves . . . on the Dobbin property.”
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At finding 48, the BLNR states that “[t]he photographs
contained in Exhibits G through N of [Petitioners’] Opening Brief
are date stamped, either on the photos or in the captions, with
dates falling between 2004 and 2008.” (Emphasis added.) But, in
contradiction of finding 48, at finding 53, the BLNR stated that
“[w]ithout having made any reference to specific observations as
to the location of the highest wash of the waves, [Petitioner]
Blair testified that . . . the shoreline should be located twenty
feet mauka of the proposed shoreline,” and at finding 56, it
stated that “[the Blair Declaration] and [the Diamond
Declaration] do not clearly identify what each photograph is
purported to depict.” (Emphases added.) These last two
observations are inaccurate in light of the fact that the
photographs, some dated, were also attached to the briefs as
exhibits, and in light of the actual Blair Declaration that
provided some specifics as to what the photos depict and what
locations were relevant. Based on these errors in considering
the points discussed by Petitioners in their declarations, it is
obvious that “the record lacks substantial evidence” to support
these findings. The BLNR apparently rejected altogether
Petitioners’ evidence of the location of the shoreline, thereby
ignoring substantial historical evidence of the shoreline’s
location.
XIV.
Finally, the BLNR’s Amended Decision reflects an abuse
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of discretion because it arbitrarily and capriciously failed to
follow the instructions of the court on remand from its earlier
decision. Pursuant to HRS § 91-14(g)(6), an agency’s exercise of
discretion is reviewable as to whether it is “[a]rbitary, or
capricious, or characterized by an abuse of discretion or clearly
unwarranted exercise of discretion.” See Sullivan, 87 Hawai#i at
228, 953 P.2d at 1326. In the instant case, the BLNR failed to
follow the proper instructions of the court on remand with
respect to its Amended Decision.
At oral argument before the court on the second appeal,
the following colloquy took place between the court and the
attorney for the BLNR:
[Counsel for BLNR]: Exactly. What it was
[the BLNR was] taking, based on the [c]ourt’s, you
know, findings and the directions from this [c]ourt,
they were taking a new hard look at the evidence that
was actually presented in the initial case.
THE COURT: As opposed to what kind of look that
was initially taken?
[Counsel for BLNR]: I mean, they did take
it. I mean, they did consider it. You know, it was
this [c]ourt that disagreed with their
characterization of the evidence, so they looked at it
again, and --
THE COURT: Ms. Chow, let me just, I want to
make sure that I’m absolutely clear on this point.
Okay.
Upon remand, this [c]ourt stated that the matter
is remanded to the BLNR with specific instructions to
appropriately consider and give due weight to
[Petitioners’] proposed evidence and to correctly
apply applicable statutes, case law and Administrative
Rules.
You’re saying the consideration and the weight
that was given the second go round is the same as it
was given the first go round?
[Counsel for BLNR]: Well, it was -- that
could very well be because, you know, the board
believes it gave appropriate weight to the evidence
during the first go round. The evidence didn’t change
between the first decision and the second decision.
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THE COURT: So this [c]ourt’s decision finding
otherwise, and this [c]ourt’s instructions sending the
matter back to the BLNR, really had no significant
effect on the BLNR?
[Counsel for BLNR]: They did take a relook -
- they did relook at all of the evidence and, you
know, to see, you know, was there something there that
was not considered the first time or, you know, how
could they better support their, you know, decision.
How was it -- would their decision be supported. And
they, you know, made the amended findings and
decision.
(Emphases added.)
With respect to its Amended Decision, first, the BLNR
did not address the court’s conclusion in its decision on the
first appeal that “the current certified shoreline appears to
incorrectly allow for the manipulation of the shoreline based
upon artificially induced and enhanced vegetation, not in
accordance with HRS § 205A-1.” Although the BLNR discussed how
it weighed Petitioners’ evidence in its findings with respect to
whether the shoreline was artificially created, it arbitrarily
failed to indicate how it weighed Respondents Dobbin and Wagner’s
evidence.
Instead, in its Amended Decision, the BLNR simply
recounted Respondents Dobbin and Wagner’s evidence at findings 69
through 75. For example, on the issue of whether the sprinkler
heads were aimed at the shoreline vegetation or toward the mauka
portion of the property, the BLNR did not explain how it found
that the Moody Affidavit, stating that “to the best of [Moody’s]
recollection, all the sprinkler heads on [the line closest to the
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shoreline] were aimed in such a fashion that the spray pattern
would be parallel to or away from the shoreline[,]” was more
persuasive than Petitioner Diamond’s declaration or photographs.
Instead, finding 72 states only that “Steve Moody, the owner of
the [] property from 2000 to 2004, admitted to having an
irrigation system [on] the property, but he testified that the
system was located several feet away from the edge of the naupaka
growing along the shoreline and that all of the sprinkler heads
were aimed so the spray would be parallel to or away from the
shoreline.”
Additionally, the declarations of current and former
owners provided by Dobbin and Wagner do not include any testimony
with respect to where they saw the highest wash of the waves on
the property. Thus, the only substantial evidence of a
historical nature, see Ashford, 50 Haw. at 315, 440 P.2d at 77,
were the years of observations described in the declarations of
Diamond, Blair, and Robeson, and the record fails in any way to
controvert Petitioners’ historical evidence.
XV.
Based on the foregoing, the ICA’s August 31, 2012
Memorandum Opinion is vacated in part, the court’s March 31, 2011
decision is vacated in part, the May 21, 2010 Amended Decision of
the BLNR is vacated, and the case is remanded to the court with
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instructions to remand the case to the BLNR for proceedings
consistent with this opinion.
Harold Bronstein, /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Walton D.Y. Hong,
for respondents /s/ Simeon R. Acoba, Jr.
Craig Dobbin and
Wagner Engineering /s/ Sabrina S. McKenna
Donna H. Kalama, /s/ Richard W. Pollack
Linda L.W. Chow,
and Julie H. China,
for respondent
State of Hawai#i,
Board of Land and
Natural Resources
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