The terms “climate change,” “sea level rise” and “global warming” don’t appear anywhere in last week’s decision by the Hawaii Supreme Court in a case involving whether the state or individual landowners are responsible for repairing and maintaining a length of seawall fronting buildings in the shadow of Diamond Head along Waikiki’s “Gold Coast.”

But the prospect of these same issues arising in other beach area as sea levels rise was the unacknowledged elephant in the courtroom.

Back in 2007, the Gold Coast Neighborhood Association, composed of condominium associations and other owners of land along the far Diamond Head end of Kalakaua Avenue in Waikiki, filed suit seeking a declaration that the state was responsible for repairing and maintaining the seawall fronting their properties.

Landowners and the state have been at odds over the seawall for a decade — and still are.

Annabelle Le Jeune/Civil Beat

The seawall, they contended, was in essence a “public highway” which had been used for decades by surfers, swimmers, fisherman and others for lateral access to and along the ocean in that stretch of shoreline. They argued the state had only recently balked at doing needed repairs after decades of taking responsibility for keeping the seawall safe for public use.

The case has been through many hoops since then. The Gold Coast landowners prevailed after a trial in Circuit Court, which found that the seawall had been surrendered to the state or, alternatively, the state had obtained an “implied easement” over the seawall to provide public access. There were cross appeals to the Intermediate Court of Appeals, which largely upheld the trial court’s decision. The state then appealed to the high court.

Last week, more than a decade after the original case was filed, the Hawaii Supreme Court issued its ruling.

One way the state could fulfill its duty would be to construct a handrail atop the seawall, the court found.

Annabelle Le Jeune

The court, in a narrow 3-2 decision, rejected the landowners’ contention that ownership of the seawall  had been effectively surrendered to the state. But while the state may not own the seawall, the court found it does have an “implied easement” based on the lengthy period of public access and use, along with a long history of repairs made or planned at state or city expense.

The easement carries with it responsibility to maintain the wall or at least contribute to its maintenance and repair, the court said.

The court also ruled the state was not liable for the landowners’ attorneys fees, which had totaled $362,831.79 even before the case was argued before the Intermediate Court of Appeals and then went up to the Supreme Court.

But the court held the state should reimburse landowners’ other costs, which amounted to just $13,707.46 as of 2011.  The case was sent back to the Circuit Court for an update of those costs.

Attorneys representing both sides in the case quickly went public to spin the court’s ruling in  favor of their respective clients.

Attorney Robert Klein, who represented the Gold Coast Neighborhood Association, told the Honolulu Star-Advertiser the ruling means the state is legally responsible to do the repairs.

“The state is on the hook,” Klein said. He is a former associate justice on the Hawaii Supreme Court, where he served from 1992 to 2000.

But Attorney General Doug Chin, in a news release, said the high court rejected the landowners’  attempt to force the state pick up the tab for repairs.

“We are pleased the Court affirmed our position that the courts are not the proper place to decide how taxpayer money is spent,” Chin said. “The State will repair the seawalls if and only if money to do so is appropriated by the state legislature and allocated by the governor.”

News reporting was similarly split. For example, Pacific Business News reported, “Hawaii Supreme Court says state responsible for Waikiki seawall.”

But Civil Beat saw it differently, reporting: “Waikiki Residents Lose Fight To Force State To Repair Seawall.”

Neither spin appears to have correctly characterized the court’s decision.

Beyond The Headlines

The state and Gold Coast landowners were at least able to agree on the basic facts of the case. The seawall was built more than 80 years ago by “unknown private parties” to protect oceanfront properties from erosion. For decades, the seawall has been freely used by those trying to get to or from the ocean for recreational purposes, without interference or obstruction by landowners adjacent to it.

And at several points over the years, repairs were done at public expense.  On several other occasions, additional funds were appropriated, but not spent, for additional repairs. Similarly, several legal opinions or letters providing legal advice to agencies acknowledged the state’s responsibility to maintain the seawall.

But the two sides remained far apart in how to interpret these facts.

“We are pleased the Court affirmed our position that the courts are not the proper place to decide how taxpayer money is spent.” — Attorney General Doug Chin

“The seawalls now protect luxury condominiums and cooperatives owned by a small number of the wealthiest property owners in the state,” the state argued in its appeal of the case. “The seawalls need millions of dollars in repairs. Rather than repair the seawalls themselves, the wealthy owners tried and failed to convince the legislature to spend the necessary millions. After failing in the legislature, some of them then turned to the court with this lawsuit.”

But landowners said they took action in support of several important public policies, including preserving the seawall for all residents and visitors to Waikiki, holding the state accountable for its duty to preserve the seawall in a safe condition as a public trail or “highway,” and protecting and affirming the public’s right to access the ocean.

“The ability to get to a recreational area is as vital for enjoying it as having it in its natural condition,” the court said, quoting an earlier case. And without access via the seawall, landowners contended, the public would not be able to get to the ocean or the several surf spots in the area.

Two justices — Chief Justice Mark Recktenwald and Associate Justice Paula Nakayama — sided largely with the state in a dissenting opinion.

But the majority bristled at the criticism and responded.

“Despite the fact that the public undoubtedly benefits from preservation of access to Hawaii’s shoreline, the dissent seeks to characterize our analysis in this case of leading to an ‘unfair result’ in part because the Gold Coast property owners allegedly ‘reap all the rewards’ that the Seawall provides,” the majority said in a footnote.  “This ignores the very core of this case — namely, that the public also reaps the rewards of the Seawall by using it to access the ocean, and it has continued to do so for many decades. Our determination that the State holds an easement over and across the Seawall in favor of the general public signifies that the Seawall will ‘inure to the benefit of all the people of Hawaii, who will be able to continue to use it in order to access the Waikiki coastline.”

Court Seeks Middle Ground

Despite the fact that the basic issue in the original lawsuit was who has the responsibility of maintaining the seawall, only three pages of the 80-page decision directly address the question.

Here the court majority appeared to seek a middle ground.

“The State will not be required to ‘foot the bill’ for the entirety of the Seawall’s upkeep, nor is it under ‘no legal obligation’ to contribute to its repair and maintenance,” the majority declared in a footnote, responding to the dissent’s criticism.

The court’s majority of three concluded the state has obtained over the years “an easement over and across the Seawall by implied dedication.” This is a crucial finding, because “an owner of an easement has the right and the duty to keep it in repair,” the court said.

“The state is on the hook.” — Robert Klein, attorney for Gold Coast Neighborhood Association

Joint use of an easement may create “an obligation to contribute jointly to the costs reasonably incurred for repair and maintenance.”

“Consistent with these principles,” the majority went on, “the State in this case will be jointly responsible with the relevant property owners for the repair and maintenance of the surface of the seawall — over and across which the State has an easement — in accordance with equitable considerations relating to their relative use, enjoyment, and contributions to the Seawall.”

It isn’t clear whether the state’s interest in “the surface of the seawall” is separate and distinct from the structural integrity of the seawall, which is likely the primary concern of the property owners.

The seawall benefits adjacent landowners by protecting their properties from erosion, while the public benefits from access to the ocean along that part of the coast. How those very different benefits will be compared and quantified to determine just how future seawall expenses will be shared is not clear.

The court demurred on getting more specific, saying “such a determination is best left to a trial court in the first instance.”

And the court also appeared to leave the door open for the state to consider options in how it will “exercise its authority and control over the public’s use of its easement consistent with applicable legal principles.”

Although the state probably can’t just walk away from its obligations, the court, in a footnote, cited favorably from a 1968 case, Levy v. Kimball, “describing various courses of action that the state could pursue to fulfill its duty of care to maintain its easement ‘over (the) seawall’ in a ‘safe condition,’ such as ‘the construction of a handrail on the makai edge of the seawall, or closing of the seawall to pedestrian traffic, or the posting of signs giving notice of its condition’”.

It took a decade for this case to get to this point, and those property owners along the Gold Coast still don’t have a final resolution. You have to wonder whether the slow-moving wheels of justice are going to stay ahead of the rising waters of climate change.

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