The public owns lands formed along the Hawaii’s shoreline decades ago that are now above the beaches, according to a Hawaii Supreme Court ruling this week that left intact a lower court’s decision.
But because those lands were once considered private property, the state must pay the owners what could be amounts ranging in the tens of millions of dollars, said their lawyer, Paul Alston.
Alston, however, acknowledged that the state will likely contend that the property is conservation land and worth only a nominal amount.
The high court’s 3-2 decision issued Wednesday deals with a case that pits the rights of private property owners against the public’s rights to shore lands.
The court refused to review a decision by the Hawaii Intermediate Court of Appeals that the state, in effect, took away land from private owners and must pay for it.
The sands along the shoreline are still owned by the state, and the public still has access to those beaches. The boundary has long been considered the upper wash of the waves marked by either the debris or vegetation line.
But what happens when the beaches expand from sand washed onto the shore or from mud and silt carried down from streams and rivers, and the debris or vegetation line moves seaward?
In years past, the adjoining owners could register ownership of that so-called accreted property if they could establish that it existed for at least 20 years. But in 2003 the state Legislature passed Act 73, which declared that those lands belong to the state.
Alston challenged the law in behalf of the Maunalua Bay Beach Ohana 28 and all shoreline property owners in the state.
Late last year the Intermediate Court of Appeals essentially upheld the law but also ruled a trial court should determine the amount of money the state must pay to those owners.
Chief Justice Ronald Moon and Associate Justices Paula Nakayama and Mark Recktenwald issued a one-paragraph order that said the court will not hear challenges from the state and the property owners to the appeals court’s decision.
Associate Justice Simeon Acoba wrote a 31-page dissent. Associate Justice James Duffy agreed with him.
Alston said yesterday he is disappointed the high court will not hear the claims that the property belongs to the owners, but pleased the court "recognized that the Intermediate Court of Appeals was right in declaring the state unconstitutionally took accretion."
He said the state’s own expert estimated that there were six acres of accreted land in Kailua alone. Appraisals for similar land would mean the value of the Kailua properties could be in the tens of millions of dollars, he said.
Alston said his clients do not know whether there are any other similarly disputed lands in the state.
"We’re looking forward to going to Circuit Court and having a trial on just compensation for owners who lost valuable land," he said. "They will get paid for that."
State attorneys could not be reached for comment late yesterday.