The Hawai'i Supreme Court, in a landmark ruling that resolves three decades of conflict over shoreline property, has clearly ruled that the public beach must be established as wide as is reasonably possible.

The decision means private beachfront property stops at the highest reach of the waves at high tide in winter, regardless of the location of salt-tolerant vegetation, like the naupaka and heliotrope plants that some beachfront property owners plant and even irrigate.

"This is really an incredible ruling that upholds public policy and puts shoreline at the highest wash of the waves," said plaintiff Caren Diamond.

The court's opinion specifically applies to the certification of shorelines, a procedure that's done before a beachfront property owner can build a home or other structure. County zoning bodies then measure a building setback inland from that line, and the property owner can build up to that line.

The shoreline building issue has been attracting public officials' attention statewide, as erosion threatens coastal homes and property owners build seawalls to protect their investments.

Much of Lanikai on O'ahu, for example, is already armored, and in many cases, there's no longer a sandy beach for public access fronting them. Maui has already established a policy of increasing shoreline building setbacks in areas of high erosion, and Kaua'i County is considering similar legislation.

Tuesday's opinion was a victory for two Ha'ena residents, Diamond and attorney Harold Bronstein, who have challenged the construction of homes perched at the edge of the public beach.

Several homes on the Ha'ena shore, permitted under the old interpretation of the shoreline rules, regularly have waves lapping at their foundations in winter, Diamond said. Some property owners have planted and watered vegetation fronting their properties, which appears to push their private yards into sandy beach. It effectively means there is limited or no public beach access along those properties.

"Landowners still persist in planting vegetation and calling it the shoreline. This ruling sends a clear message that this game is over," said Isaac Moriwake, an attorney for Earthjustice, which had filed a friend-of-the-court brief in the case on behalf of Public Access Shoreline Hawaii and the Sierra Club.

While the Supreme Court's decision clarifies some things, the coastal problems are far from solved, said Jeff Mikulina, director of the Sierra Club's Hawai'i Chapter.

"The Supreme Court's ruling vindicates the public's right to shoreline access and use, but we still need our state and county officials to get serious about protecting these rights from getting buried under walls of vegetation and concrete," Mikulina said.

Some government agencies — notably the state Department of Land and Natural Resources — have recognized the problems and have improved their procedures with respect to coastlines.

IMPROVED RULES

Land department director Peter Young said his agency during the past two years has changed its approach, expanding its own staff expertise and bringing in Sea Grant coastal specialists to assist when shorelines are certified.

"We recognized that we needed to do things better, and we've been doing them. We're looking at all the evidence on the ground. We look at the debris line, we look at dunes. And I think that the court verified that the way we do things now and the rules that we've changed, that the department's doing it the correct way," Young said.

Diamond said that the land department has made important strides, but still falls short of meeting the requirements of the Supreme Court's ruling.

"They have really improved their practices. I've seen them use the dune instead of the vegetation line, but I still haven't seen them go to the highest wash of the waves," she said.

Dean Uchida, a private property rights advocate and executive director of the Land Use Research Institute, said that the decision will ultimately have impacts in other areas.

"It creates a definite problem. It's really going to raise serious questions and concerns from a private property standpoint—about access, ownership and zoning," Uchida said.

State law is clear that the shoreline is established at "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." But since it might be difficult for someone to pinpoint that location, the law adds that it's usually possible to determine it by vegetation or debris.

PREVIOUS CASE CITED

The court said that neither is more important than the other in making the shoreline determination. It suggests that if both debris and vegetation are present, the shoreline is indicated by the more landward of the two.

In saying this, the court cited a 1973 Supreme Court opinion, County of Hawai'i v. Sotomura. The Sotomura case has helped cause many of the misunderstandings in recent decades over shorelines, since in that case, the court said the vegetation line should mark the shoreline. But in Tuesday's ruling, the court noted that this was only because in Sotomura, the vegetation line was mauka — inland — of the debris line.

"A careful reading of Sotomura makes clear that the vegetation line was not intended always to trump the debris line. The Sotomura decision clearly favored the public policy of extending 'as much of Hawai'i's shoreline as is reasonably possible' to public ownership and use," the court said in Diamond v. State of Hawai'i.

Ultimately, the decision will likely have no direct impact on the Ha'ena property that generated the case. A lower court allowed permits to be issued based on the now-rejected shoreline certification, and a house is now under construction on it. But the owner of the lot who was cited in the case, Carl Stephens, is not the one who will use the house.

Stephens, a Washington state resident, told The Advertiser last month that the repeated appeals of his shoreline certification were so frustrating that he put his place on the market.

"You get the shoreline certified, and they appeal it, and by the time you go through the protests, your certification expires and you have to start over. My place is now being built, but I've since sold it. I was just tired of it," Stephens said.

Reach Jan TenBruggencate at jant@honoluluadvertiser.com.