Posted on: Monday, February 23, 2004

EDITORIAL
Shoreline must be vigorously protected

One of the more remarkable aspects of Hawai'i's legal and cultural climate is the well-established tradition that the beaches belong to the public.

The tradition is established in Hawaiian cultural practice and has been cemented both in law and in landmark Supreme Court decisions.

The wedge issue, however, has been in deciding where the public beach ends and private property begins. It is on this question that Hawaiian and local judicial law and Western concepts of private property ownership come head-to-head.

Advertiser Science Writer Jan TenBruggencate explored this ongoing struggle in a story last week on the efforts of some beachfront landowners to extend their property.

Most commonly, this happens by planting and irrigating vegetation on the oceanside boundary of the property. Generally speaking, the law recognizes the public beach as being measured by a line just beyond the high wash of the waves, often recognized as the vegetation line.

There's logic to this. But human intervention, through aggressive planting and irrigation, can change the dynamic.

The Legislature is considering bills that would revise how the public shoreline is defined, perhaps by creating a new government position of "shoreline locator" who presumably would be skilled in recognizing the true shoreline, not one that has been artificially induced.

Another bill would do away altogether with the vegetation line as an indicator, in part because of artificial efforts to extend plantings toward the ocean.

To a degree, it can be argued that plantings and vegetation are a benign way of protecting the coastline from erosion. Surely a row of trees is preferable to a seawall.

And insofar as homeowners are "hardening" their oceanfront properties with vegetation, few would object. But it often goes beyond this.

In some cases, once the new vegetation is established, homeowners attempt to treat the area as de facto private property, forcing the public closer to, or in, the ocean.

Under the law, it is extremely difficult to gain title to property that has been added by accretion. About the only case in which this happens is when property is lost to erosion, then comes back and stabilizes over a 20-year period.

A far more common problem comes up when landowners seek to have the shoreline "certified" for purposes of determining where the setback (usually 40 feet) is measured.

In theory, when a landowner extends the shoreline closer to the sea, he is permitted to build closer to the ocean. Then, when the ocean reclaims the property — as it almost surely will — the owner's structures are threatened and the pressure to build a seawall mounts.

It is a privilege to live along the ocean in Hawai'i. But it is a privilege that comes with conditions, including the one that says one must share the oceanfront with all others who seek to enjoy it.