Full Disclosure: I like the beach.
Ironic that on the day the U.S. Supreme Court is reviewing a Florida Supreme Court's decision to regarding a beachfront property owner's property rights (see Robert Thomas' comprehensive coverage of the case and our amicus brief here), I come across an article regarding Hawaii's beaches and a dispute relating to the beachfront parcels abutting those beaches. (Hat tip to Robert)
The Honolulu Weekly ran an article (here) which conflates the certified shoreline and the property boundary between the State and the beachfront property owner. The distinction is important. The certified shoreline is merely the line from which setbacks are defined, for the purposes of the Coastal Zone Management Act (see Robert's excellent post on the Diamond v. BLNR case here).
The State may have the power to disallow construction in an area too close the certified shoreline, but it certainly cannot re-define where the fee simple boundary exists. (The former head of the State Board of Land and Natural Resources agrees here).
For the definition of property boundaries, we turn to common law which for oceanfront parcels we look to the Ashford decision of the Hawaii Supreme Court. In Re Application of Ashford, 50 Haw. 314, 440 P.2d 76 (1978). In Ashford, the Hawaii supreme court disregarded no less than six of its prior decisions, undisputed historical facts and settled law throughout the land and moved the boundary of an oceanfront parcel landward from the former mean high water line to the "upper reaches of the waves," effectively confiscating 20 to 30 feet of the shoreline. 50 Haw. at 315, 440 P.2d at 77. The royal patent, or deed, for the parcel denoted the oceanside boundary as ma ke kai or "along the sea" in Hawaiian. Id. The supreme court, cursorily concluding that the King who signed the royal patent was ignorant of the survey data, and therefore could not have intended to grant the land below the upper reaches of the waves, instead turned to oral testimony and reputation evidence regarding customary usage of the shoreline. Id.
One justice, Justice Marumoto, dissented. He noted that the decision relied on "spurious historical assumptions," contemporaneous common law from England and the United States, and disregarded settled U.S. Supreme Court law to reach its conclusion. 50 Haw. at 321, 440 P.2d at 81. The dissent criticized the decision's reliance on the King's intent, inferring personal ignorance of the King and disregarding the educational levels of the King's advisors, who certainly would have had to approve the patent. 50 Haw. at 321-30, 440 P.2d at 81-86. The dissent then criticized testimony that relied on the "fallible memory of man" regarding the customary boundary of oceanfront parcels throughout Hawaii, testimony that was directly contradicted by no less than 6 decisions of the selfsame supreme court. Id. at 330-31, 440 P.2d at 86 (noting that all six cases found the oceanfront boundary at the high water line and not at the upper reaches of the waves). Cf. Haalelea v. Montgomery, 2 Haw. 62 (1858); Territory v. Liliuokalani, 14 Haw. 88 (1902); Brown v. Spreckels, 14 Haw. 399 (1902), 18 Haw. 91 (1906), aff'd 21 U.S. 208 (1909); see also Halstead v. Gay, 7 Haw. 587 (1889); Boundaries of Pulehunui, 4 Haw. 239 (1879); Koa v. Kaahanui, 6 Haw. 167 (1876). Justice Marumoto, following a lengthy factual inquiry which cast much doubt on the testimony of custom, concluded that there was nothing in ancient tradition, custom, practice, or usage which dictated the use of vegetation line (which would denote the upper reaches of the waves). 50 Haw. at 344, 440 P.2d at 93.
We cited Ashford in our amicus brief in the Florida shoreline case argued today. Our theory was that when a state supreme court re-defines property to the detriment of the property owner, a compensable Fifth Amendment taking occurs. We shall see in a few months if the U.S. Supreme Court agrees.
