Most property lines are static, unchanging and unmoving. But for those Hawaii residents lucky enough to have beachfront homes, that line is constantly in flux. The moving boundary has created a legal quandary.

The Hawaii Supreme Court is being asked to weigh in on a class-action lawsuit that challenges a seven-year-old Hawaii law. The court’s decision will help answer an age-old question: Who owns the sand?

“Grains of sand are always coming and going, literally with every gust of wind, every new wave, the rise and fall of the tides, currents that emerge and even the seasons,” said Chip Fletcher, a professor of coastal geology in the Department of Geology and Geophysics at the University of Hawaii. “The shoreline is constantly changing its position. It’s never still.”

For many years, Hawaii law has required that the public have access to everything makai (seaward) of the shoreline, a term defined as the highest wash of the waves as evidenced by vegetation and debris.

But 2003’s Act 73 went one step further, claiming that natural, permanent accumulations of sand belong to the state — not to beachfront property owners. Under the law, even when the shoreline moves makai as new sand piles up, the private property line stays in place.

A group of property owners calling themselves the Maunalua Bay Beach Ohana, who filed suit challenging the law, are unhappy with the Intermediate Court of Appeals’ ruling handed down Dec. 30, 2009. But the decision gives neither homeowners nor the state a clear victory. In late April, the homeowners group and the Hawaii Department of the Attorney General each filed separate requests asking that the Supreme Court step in.

The homeowners’ April 22 petition for Supreme Court intervention argues that the appellate court erred when it ruled that landowners have no vested right to future potential beach growth, essentially freezing property lines in 2003 without any compensation. The state’s application, filed four days later, argues that the appellate court erred on the other side when it ruled that claiming land that accumulated before 2003 was an illegal taking.

Laura Moritz, an attorney at the law firm Alston, Hunt, Floyd and Ing, represents homeowners in the Portlock area, an affluent East Oahu neighborhood in Hawaii Kai with monogrammed electronic gates, carefully manicured lawns and designated service entrances. Moritz said homeowners purchase beachfront properties with the understanding that they might suffer if the beach shrinks and benefit if it grows.

“They should be able to buy it with the expectation that the state can’t take it from them to take it illegally without compensation,” she said. “If the state wants to expand the beach in that way, it is within its rights to do so, but not without compensating a private property owner.”

Moritz said some properties near the water are defined by “metes and bounds” and have a piece of state land or conservation land in front of them, while others are described in their deeds as “ma ke kai,” translated literally as “beside the sea.” Those parcels that used to have their property lines move with the ebb and flow of the sand could go from beachfront to merely beach-view if the state turns the new land into a park or builds a public bathroom on it, Moritz said.

“It matters because it changes the very character of whether you’re an ocean-front owner or not,” she said.

Fletcher said such dramatic beach growth is a “theoretical possibility, but I’m not aware of any place that is accreting at that rate.” The vast majority of Hawaii’s shoreline is shrinking, and even those beaches that are growing are doing so on the scale of inches to a foot per year. One of the state’s fastest-growing beaches, Paiko Peninsula on the opposite side of Maunalua Bay from Portlock, is widening in some sections by more than a foot per year, though that rate is not necessarily stable, Fletcher said.

“In general, from a geological point of view, I see accretion as a relatively isolated phenomenon that requires very specific conditions. The majority of our beaches don’t meet those conditions, so they’re either stable or eroding,” he said.

The School of Ocean and Earth Science and Technology has created a coastal erosion website that uses historical aerial photos to depict rates of shoreline change spaced every 20 meters on the beaches of Maui, Oahu, and Kauai.

But ultimately, beach erosion and accretion is an inexact science. Fletcher said the university’s methodology is just one approach, and that other experts could come to an alternate conclusion about beach growth. “There’s no hard and fast truth here,” he said.

Asked for comment on the landowners’ appeal, the Attorney General’s Office pointed to its formal response, filed May 10, which asks the Supreme Court to deny the application.

According to Hawaii Rules of Appellate Procedure, the Supreme Court must either accept or reject each of the applications by mid-June. If it accepts one or both of the applications, the court can ask for further filings or hold oral arguments.


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