Wealthy beachfront homeowners turn to the courts to avoid Hawaii environmental laws

When heavy surf threatened their home in Mokuleia in the winter of 2006-07, Elizabeth and Mike Dailey ignored state environmental laws and stacked large boulders along the beach, creating a formidable seawall.

Hawaii’s Board of Land and Natural Resources swiftly fined them $12,000 and ordered them to remove it, citing its no-­tolerance policy for new seawalls, which have led to large-scale beach loss throughout the state.

But 15 years later, the seawall remains.

Elizabeth, who is now 103 years old, and her son, Mike, members of a prominent family known for their love of polo, have racked up untold legal bills over the years as they’ve fought the state in court and through the state’s administrative hearing process.

In response to one appeal, First Circuit Court Judge Jeffrey P. Crabtree made it clear that property owners cannot engage in “self-help.”

“There are many oceanfront landowners on the North Shore and all around the state facing similar threats to their homes and properties,” he wrote in a 2020 decision. “This unfortunate reality cannot devolve to where a landowner can freely do what they feel is fair and justified to protect their ocean-front property. BLNR cannot look the other way without risking severe consequences.”

Armed with Crabtree’s ruling, the case looked like it was on the verge of being resolved earlier this year. The state was once again set to fine the Daileys and order them to remove the wall. But on July 15, the Daileys lobbed another appeal in court. Neither Mike Dailey nor his attorney Greg Kugle responded to requests to comment.

The Daileys’ case is among the state’s longest running seawall enforcement cases and highlights how wealthy beachfront property owners have been able to evade state laws aimed at protecting public beaches.

About 10 miles to the east of the Daileys’ home, at Sunset Beach, James and Denise O’Shea have been locked in a similar battle with the state for the past five years. In 2017, without state or county approvals, they brought heavy equipment, including an excavator, onto the public beach and built a new 13-foot seawall after their previous wall collapsed.

The Land Board was poised to order the O’Sheas to remove the seawall and fine them $77,500, plus $15,000 for each day they didn’t comply with the order.

“We have essentially a seawall that was completely rebuilt, and it was done without any sort of permit from any government entity, any approval, any consent, on one of the most spectacular beaches on the planet,” Sam Lemmo, the former administrator of the Office of Conservation and Coastal Lands, told the Land Board in the heated 2017 hearing. OCCL, a division of the Department of Land and Natural Resources, is tasked with protecting conservation land, including public beaches.

But before the hearing was over, the O’Sheas had requested a contested case, an administrative hearing that has yet to be resolved as the legal wrangling plays out in court.

The O’Sheas could not be reached for comment. Their attorney, who is also Kugle, did not respond to an interview request.

The burdensome litigation is poised to grow exponentially as property owners fight to safeguard homes, hotels and businesses against stronger storms and rising seas wrought by climate change, further straining the state’s resources and its ability to pressure coastal property owners to move away from the shorelines before conditions grow more disastrous.

The battle has grown particularly tense along Oahu’s world-famous North Shore where in addition to seawalls, stacks of long, hard sandbags are now threatening stretches of stunning white-sand beaches. As waves hit the barriers, they pull sand off the beach and block sand reserves mauka of the structures from replenishing what’s been lost. Scientists say that in order to survive, Hawaii’s beaches need to be able to naturally migrate landward.

In recent years, OCCL has issued about 50 emergency permits that allowed property owners to build sandbag “burritos” along the North Shore. The structures typically include rows of long, hard sandbags connected to thick black tarps that form a hard barrier between properties and the ocean.

The permits, which had long flown below the public radar, were supposed to be temporary, buying property owners a couple of years to figure out what to do with their properties. But homeowners all along the North Shore have refused to remove the protections, which typically cost tens of thousands of dollars, after their permits expire.

“We have had zero percent compliance,” Michael Cain, OCCL’s new administrator, told the Land Board during a meeting earlier this month .

Cain said that OCCL doesn’t have the resources to tackle all of the cases at once.

“We have been bringing them to you guys slowly. We don’t have a good system in place in this state to handle this,” Cain told board members. “Doing policy through litigation is a horrible way to move forward, but we have to work with the tools that we have.”

Cain had tried issuing notices of violation to some of the property owners in the hope that they would remove their expired burritos. But the homeowners instead requested contested cases, said Cain, which the state can’t deny because it pertains to property interests.

The administrative process is in place to ensure those accused of violations have due process. But it can be lengthy and tie up OCCL’s limited resources. Two deputy attorneys general must be assigned to the case, and the state must hire a hearing officer to oversee the matter and issue a final determination that is then taken to the Land Board. Contested cases can stretch on for months and even years, and decisions can be appealed in court.

Cain said that while the process can be frustrating, there is little that OCCL can do.

“We would like to see a reevaluation of the contested case process and how they are handled,” he told the Honolulu Star-Advertiser. “But we are land-use planners and not lawyers.”

Any revisions to the rules would cover not just OCCL but the entire state, and have to be led by the state Attorney General’s office.

As the enforcement battle draws on, stretches of the North Shore coastline continue to be marred by burritos, which get torn up and twisted in the surf; crumbling seawalls; and other debris that homeowners have put in front of their houses to try to stave off the ocean. Some North Shore residents and coastal scientists say there is already evidence that shoreline hardening around Rocky Point is damaging the beach.

Marti Townsend, who helped shepherd through legislation in recent years to better safeguard the state’s beaches while she was director of the Hawaii Sierra Club, said that the state needs to be tougher when it comes to enforcement.

“Homeowners took the risk of buying a house on the shoreline. They knew this was going to happen. It was totally foreseeable and they took the risk,” said Townsend. “The risk of those gambles shouldn’t be placed on the side of the public and our beaches.”

Townsend said that DLNR itself should remove illegal and expired shoreline hardening structures that are occupying public land, noting that environmentally, time is of the essence.

“If someone wants to contest that action, they can have a contested case hearing, but the time that is spent on that is serving the benefit of the public because the beach is protected, as opposed to what we have now, which serves the interest of the private landowner,” she said.

But DLNR has been reticent to take that step, saying that the shoreline armoring and the home itself needed to be dealt with simultaneously.

“Removing the structures from the beach without concurrent actions on the private properties would not solve the environmental issues — we would then be facing the risk of cesspools and/or residences collapsing onto the beach,” a DLNR spokesperson said by email. “Any solution must be initiated by the landowners and coordinated with county permitting officials.”

It remains to be seen how many property owners will take that initiative. And if a recent contested case is any indication, the standoff on the North Shore will likely drag on for years.

In January 2021, the Land Board ordered famous surfer Liam McNamara and his wife, Brandee, to remove a recently reconstructed and expanded seawall. The state says the original wall was illegal. The property has been crumbling onto the beach.

The McNamaras requested a contested case and have argued that they were entitled to rebuild the wall and protect their property.

In briefs filed before a hearings officer, Dawn Chang, OCCL argued that there was undisputed evidence that the seawall was harming and will continue to harm “a precious, irreplaceable public resource — world famous Sunset Beach.”

“Further, by adding material to the shoreline, the McNamaras have effectively claimed portions of public submerged lands for themselves,” wrote OCCL. “The state cannot let this usurpation of public lands become ‘irrevocable’ without itself violating the public trust.”

However, OCCL and the McNamaras recently came to a settlement that is pending Land Board approval, according to contested case documents.

Under the agreement, the seawall doesn’t have to be removed until the end of December 2023, at which time the McNamaras can seek a “sufficient number of temporary erosion control structures,” a likely reference to stacks of burritos.

The permit for the sandbags will be for one year, but the McNamaras can apply to extend it, according to the settlement terms. Only at that point would an environmental assessment be required.

By that time, the shoreline hardening protections, the reconstructed seawall and sandbags would have been in place for about four and a half years.

An attorney for the McNamaras said that the settlement documents are in the process of being finalized. The McNamaras did not respond to a request, made through their attorney, to comment on their long-term plans for the property. OCCL didn’t respond to questions about the settlement.