CAREN DIAMOND and BEAU BLAIR, Petitioners/Plaintiffs-Appellants /Appellees-Cross-Appellees,
CRAIG DOBBIN and WAGNER ENGINEERING SERVICES, INC., Respondents/Defendants-Appellees/Appellants-Cross-Appellees, and STATE OF HAWAl'l, BOARD OF LAND AND NATURAL RESOURCES, Respondent/Defendant-Appellee/Appellee-Cross-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30573, CAAP-11-0000345; CIV. NOS. 09-1-0197, 10-1-0116)
Harold Bronstein, for petitioners.
Walton D.Y. Hong, for respondents.
Craig Dobbin and Wagner Engineering.
Donna H. Kalama, Linda L.W. Chow, and Julie H. China, for respondent State of Hawaii, Board of Land and Natural Resources.
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
We hold that in making a shoreline determination pursuant to Hawai'i Revised Statues (HRS) § 205A-42 (1993), Respondent/Defendant-Appellee/Appellee-Cross-Appellant State of Hawai'i, Board of Land and Natural Resources (the BLNR), must consider the historical evidence of the upper reaches of the wash of the waves. The BLNR's May 21, 2010 "Amended Findings of Fact, Conclusions of Law, and Decision and Order" (Amended Decision), establishing a certified shoreline for the property owned by Respondent/Defendant-Appellees/Appellants-Cross-Appellee Craig Dobbin (Dobbin) and surveyed by Respondent/Defendant-Appellees/Appellants-Cross-Appellee Wagner Engineering Services, Inc. (Wagner) located in Wainiha, Kauai (the property), effectively failed to do so and contained errors of law and clearly erroneous findings of fact. Accordingly, the BLNR's Amended Decision is vacated. Correspondingly, the October 3, 2012 Judgment of the Intermediate Court of Appeals (ICA), upholding the Amended Decision and vacating the March 31, 2011 Judgment of the Circuit Court of the Fifth Circuit (the court)that had sustained the appeal of Petitioners/Plaintiffs-Appellants/Appellees-Cross-Appellees Caren Diamond and Beau Blair (Petitioners) as against the said BLNR Amended Decision, is also vacated. For the reasons stated herein we vacate the court's March 31, 2011 Judgment in part. We remand to the court, with instructions to remand the case to the BLNR for proceedings consistent with this opinion.
The Shoreline Certification Process
In 1986, the legislature enacted Act 258, which amended HRS chapter 205A, governing coastal zones. 1986 Haw. Sess. Laws Act 258, § 1 at 466-68. As part of Act 258, the legislature amended the definition of "shoreline" found in HRS § 205A-1 (Supp. 2005) to read as follows: "''Shoreline' means the upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of the vegetation growth, or the upper limit of debris left by the wash of the waves." 1986 Haw. Sess. Laws Act 258, § 2 at 469 (emphasis in original). That section also defines "shoreline area" as "all of the land area between the shoreline and the shoreline setback line . . . ." HRS § 205A-41 (2001 Repl.). The "shoreline setback line" is "that line established in [HRS Chapter 250, Part III] or by the county running inland from the shoreline at a horizontal plane." Id.
HRS § 205A-42 authorizes the BLNR to "adopt rules pursuant to chapter 91 prescribing procedures for determining a shoreline and appeals of shoreline determinations[.]" Pursuant to this statutory mandate, the BLNR adopted, inter alia, Hawai'i Administrative Rules (HAR) § 13-222-10 (2003), setting forth the procedure for shoreline certification, and HAR § 13-222-26 (2003), describing the process for appealing a shoreline certification. B. 2005 Shoreline Certification Application
On June 27, 2005, Esaki Surveying and Mapping, Inc. filed an application for Shoreline Certification with the DLNR on behalf of Jeffrey Galloway (Galloway), the owner of the property. The purpose of the Shoreline Certification was to obtain a Building Permit. Galloway's application was transmitted to State of Hawai'i Department of Accounting and General Services (DAGS) Surveyor Reid Siarot (Siarot). See HAR § 13-222-10(a) (2003) ("The state land surveyor shall review the . . . information provided by the applicant[.]").
Petitioners and Barbara Robeson sent a letter to Siarot requesting that a site visit be conducted during the winter months to determine the appropriate shoreline. On April 12, 2006, Siarot sent a letter to the DLNR stating that he had inspected the shoreline at the site, and that Dennis Esaki (Galloway's surveyor), Petitioners, and others "participated in the site inspection." Siarot stated that, "[a]s a result of the inspection, the shoreline was determined to be at the debris line near the mauka edge of the naupaka hedge, further mauka than delineated on the map. Mr. Esaki was advised to revise his maps and photographs." (Emphasis added.) Because Dennis Eskai had failed to return his calls or provide the requested information during a period of six months, Siarot recommended that, in accordance with HAR § 13-222-7 (b) (15) and (I) (2003), Galloway's application be rejected. Galloway subsequently sold the property. 2008 Shoreline Certification Application
On January 11, 2008, Dobbin and Wagner filed a Shoreline Certification application with the DLNR for the same property. The purpose of the certification was to obtain a building permit for Dobbin, the new owner of the property. The DLNR accepted the application and transmitted it to Siarot. The application was also submitted for publication in the Office of Environmental Quality Control (OEQC) Environmental Notice, to allow for public comment.
As with the 2005 shoreline certification, Petitioners sent a letter to Siarot requesting a site visit inspection and suggested that Siarot review his previous photographs and file for the property because of "[n]aupaka enroachment issues, planted beach heliotropes, [and a] shoreline too seaward . . . ." On April 18, 2008, a site visit was conducted. A report of the site visit (report) indicates that the survey personnel were Siarot, Ian Hirokawa (Hirokawa), and Chris Conger, who were accompanied by Petitioners and Ron Wagner. The report differed from the shoreline location recommended by Siarot in 2005, that "was considerably mauka" of the ocean:
Shoreline: .... The profile started to mauka with a graded area in the lawn; then moved makai to the berm of graded sand; then the orange construction fence; the start of the naupaka hedge and back of the dune, St. Augustine grass and Iron Wood debris on the west side; the dune crest and contact between old accumulated Iron Wood debris and fresh Iron Wood and other debris; the makai edge of the hedge ([n]aupaka, beach heliotrope, spider lily) and debris; beach face; recent debris line (cobble and gravel); the berm crest and berm face; makai edge of sand and start of beach rock; and most makai was the beach rock ridge and swash zone.
Decision: Recommended the proposed shoreline for certification. A different location, considerably farther mauka on the back of the frontal dune, was identified as the shoreline location during an October 19, 2005 site visit (KA-034-2A) by Dolan Eversole, Chris Conger,  Siarot, and Morris Atta. There is no evidence that the wash of the waves has extended that far mauka in the past two winters, especially the most recent winter season.
(Emphases added.) Siarot sent a letter dated May 28, 2008 to the DLNR, Land Division Administrator, Morris M. Atta, recommending that "the State of Hawai'i should have no objections to adopting the dune crest as the shoreline as delineated on the map prepared by [Wagner]."
Notice of Appeal to the BLNR
On June 8, the proposed shoreline certification for the property was published in the OEQC bulletin, and on June 27, 2008, Petitioners filed a Shoreline Certification - Notice of Appeal, stating that "[t]he proposed shoreline certification does not properly or accurately locate the shoreline according to the upper reaches of the wash of the waves at high tide during the season of the year when the highest wash of the waves occurs." On September 17, 2008, Hirokawa, a Project Development Specialist with the Land Division of DLNR, recommended to Laura Thielen, at that time the Chairperson of the BLNR (Chairperson Thielen), that the BLNR grant Petitioners standing to appeal the shoreline application and also grant Dobbin and Wagner standing to participate in the appeal. Chairperson Thielen approved the recommendation on September 22, 2008, and issued an order notifying the parties of standing, the briefing schedule, limits on ex parte communications, and the potential for site inspections.
In their brief to the BLNR, Petitioners cited to HRS § 205A-1, which as stated, provides the statutory definition of "shoreline, " and argued that "[e]ach year, depending upon the size and direction of the swells, the winter waves repeatedly wash well into and beyond the currently proposed shoreline for [the property]." With respect to their contention that Respondents Dobbin and Wagner's proposed shoreline did not represent the shoreline in accordance with the definition at HRS § 205A-1, Petitioners argued several points. First, they alleged that their evidence, in the form of photographs, was the "most credible" and that Siarot incorrectly located the shoreline "based solely in this case, upon , on the ground evidence, ' at the time of the April 18, 2008 site visit." (Emphases in original.) Second, Petitioners averred that "the State Surveyor ignore[d] his own recommendations of October 19, 2005, and further ignore[d] the importance of the historical evidence which confirms the Surveyor's previous location of the shoreline . . . ." (Emphases in original.) They stated that, "[s]imply put, the DLNR's current determination of the shoreline based upon a limited one year time frame, i.e. the particular year for which the certification is sought, is wrong as a matter of law."
In support of these first two arguments, Petitioners contended that the exhibits they provided,  including photographic evidence, demonstrated the highest wash of the waves, and that the naupaka and heliotrope trees on the property were acting as a "''barrier' which [was] prevent [ing] and[/]or hinder[ing] the observation of the true evidence of the debris line created by the upper wash of the winter waves." (Emphases in original.) They alleged that the naupaka and other salt tolerant plants evidenced in the photographs were being used to create an artificial shoreline and resulted in a vegetation line that did not represent the "highest wash of the waves." Finally, Petitioners contended that using the "artificial shoreline, " represented by the vegetation line on the property, as the certified shoreline was aqainst public policy. They suggested that this court has held "that public policy ''favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible[, ]'" (quoting Sotomura, 55 Haw. at 180, 517 P.2d at 61), and that their proposed shoreline, based on the 2005 State Surveyor recommendations, was in accord with this policy. Dobbin and Wagner Brief in Support of Their Proposed Shoreline
On November 12, 2008, Dobbin and Wagner filed their answering brief with the BLNR. First, they alleged that "[a]although the [DLNR] has historically been lenient in permitting lay witnesses to testify as to factual underpinnings, the ultimate determination of the upper reaches of the wash of the waves at hiqh tide in the season of the year in which the highest wash of the waves occurs is one for experts and those qualified under the law." Thus, they related, the determination of the property shoreline as made by the licensed surveyor (Wagner), and as reviewed by Siarot and DNLR personnel, should be "afforded deference" as a matter of administrative law.
Second, Dobbin and Wagner argued that Wagner's determination of the shoreline, as affirmed by the State Surveyor and DLNR personnel was "supported by substantial evidence and complie[d] with all applicable statutory and regulatory requirements." Dobbin and Wagner contended that the proposed certified shoreline satisfied the two relevant indicators in the statutory definition of "shoreline" as set forth in HRS § 205A-1 -- the vegetation line and the upper limit of debris. They maintained that there were mature ironwoods and naupaka established makai of the dune crest and that the debris shown in Petitioners' photos had originated from "falling branches and needles along the shoreline[, ]" rather than from the wash of the waves. According to Dobbin and Wagner, any debris that was from the waves had slid down the dune and thus was "back side debris", rather than the "'upper limit of debris left by the wash of the waves.'" (Quoting HRS § 205A-1.) (Emphasis added.)
In support of the shoreline proposed by Wagner, Dobbin and Wagner attached exhibits that included (1) an affidavit of Steve Moody (Moody affidavit), the owner of the property before Galloway from 2000 to 2004, stating that there was no planting of vegetation along the shoreline front at any time; and (2) an affidavit of Danny Shook (Shook affidavit), who did landscaping work for Moody, stating that the irrigation and sprinklers in place "were not aimed towards nor intended to irrigate the naturally growing shoreline vegetation." Dobbin and Wagner alleged that Petitioners' photographs indicated that "none of the sprinklers were aimed toward the shoreline vegetation." With respect to Petitioners' proposed shoreline, Dobbin and Wagner contended that Petitioners' shoreline was completely arbitrary, that "[t]here is no admissible proof to support their asserted line, nor anything to tie that line to the statutory criteria, " and that "the heavy natural growth of the naupaka fronting the shoreline renders it impossible to discern any line of debris at such a distance from the certified shoreline[.]"
Third, Respondents Dobbin and Wagner alleged that all of Petitioners' photographs "purporting to show a debris line from years past are irrelevant" because "[a]s a matter of law, wave events from past years do not and cannot establish the upper reach of the wash of the waves in the season of the year in which an applicant submits." (Citing In re Application of Sanborn, 57 Haw. 585, 588, 562 P.2d 771, 773 (1977).) Dobbin and Wagner contended that this interpretation of HRS § 205A-1 was appropriate because "[s]tatutes regulating, restraining or interfering with private property are subject to a strict construction" (citation omitted), and "where the terms of the statute are plain, unambiguous and explicit, as in this case, the appellate body is not at liberty to look beyond the statutory language for a different meaning[, ]" (citations omitted).
They also alleged that this "current year" requirement is recognized in the DLNR Report to the Legislature, in which it recommended that the term "'annual' means that the wave must have a statistical recurrence interval of at least once per year." (internal quotation marks omitted.) According to them, the requirement that an application for shoreline certification include maps "'based on an actual field survey conducted within ninety (90) days prior to the filing . . . [, ]'" (quoting HAR § 13-222-9(c) (2003)), indicates that the map should be based on that year's field survey alone.
Fourth, they contended that even if other years could be considered by the BLNR, the evidence from preceding years of "gravity flow down the backside of the dune [on the property] [was] insufficient" to establish the "upper reaches of the wash of the waves[, ]" because a gravity flow of debris down the dune does not mark the "upper reaches." According to Respondents Dobbin and Wagner, the statute uses the phrase "upper, " and that interpretation is consistent with the BLNR Report to the Legislature, which states that "''run up' means that the water position setting the shoreline must be derived exclusively by wave energy run-up, and not aided by gravity or tunneling through narrow passages." (Internal quotation marks omitted.) (Emphasis in original.)
Fifth, they argued that the statutory definition of a shoreline recognizes the presence of vegetation as a possible shoreline indicia, and that the BLNR should not speculate on how far debris would travel absent intervening vegetation, because that would mean that it gave the debris line preference over the vegetation line, in contravention of Diamond v. State Board of Land & Natural Resources, 112 Hawai'i 161, 174, 145 P.3d 704, 717 (2006) (Diamond I). In other words, they maintained that if debris was stopped in its movement by the vegetation, the BLNR should allow the area where it stopped to represent the shoreline, rather than prioritizing a hypothetical debris line over an actual vegetation and debris line. The BLNR's Denial of Petitioners' Appeal
On June 17, 2009, Hirokawa transmitted a memorandum to BLNR Chairperson Thielen, recommending that she deny Petitioners' appeal, "based upon [Petitioners'] failure to provide evidence to support the relocation of the shoreline at their proposed location." The memorandum stated that "[t]he evidence they provide is largely anecdotal, and the photographs provided, which are often undated, do show an increased growth in naupaka and various debris lines. However, a closer examination of the photographic evidence provided fails to overcome their burden of proof to justify moving the shoreline to their proposed location." Attached to the memorandum were the Findings of Fact (findings), Conclusions of Law (conclusions), and Decision and Order. Chairperson Thielen approved the memorandum on June 19, 2009.
On June 19, 2009, Chairperson Thielen signed the memorandum and the "Findings of Fact, Conclusions of Law, and Decision and Order" (collectively, Decision). She certified the shoreline in accordance with Wagner's map and Hirokawa's recommendation, on June 25, 2009.
First Appeal - No. 30573
Petitioners appealed the BLNR's Decision to the court on July 20, 2009. Petitioners challenged a number of the BLNR's findings and conclusions, and argued that the Decision and Order was "arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion and wrong as a matter of law." (Quoting HRS § 91-14(g) (1993).)
On March 2, 2010, the court heard oral arguments in the case, and on April 6, 2010, the court entered its "Findings of Fact, Conclusions of Law, Decision and Order." In its conclusions, the court held, inter alia, that:
2. HRS § 205A-1 defines "shoreline" as "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."
8. The BLNR's characterization as either 'anecdotal evidence and/or unreliable evidence' with respect to both the detailed Declarations of [Petitioners and Robeson], and the photographs they submitted in support of their appeal is arbitrary, capricious and/or characterized by an abuse of discretion or clearly unwarranted exercise of discretion, not in accordance with HAR § 13-222-10.
9. The map of the certified shoreline published on June 8, 2 0 0 8 and signed by the Chairperson on June 25, 2009 based upon the "conditions existing on December 4, 2007" does not correctly reflect the "upper reaches of the wash of the waves at high tide during the season of the year in which the highest wash of the waves occurs", as provided in HRS § 205A-1.
12. The current certified shoreline appears to incorrectly allow for the manipulation of the shoreline based upon artificially induced and enhanced vegetation, not in accordance with HRS § 205A-1.
13. The BLNR's interpretation of HRS § 205A-1, et. seq. that only the "current" year's evidence of the upper reaches of the wash of the waves should be considered in determining the shoreline is arbitrary, capricious and/or characterized by an abuse of discretion or clearly unwarranted exercise of discretion in applying HRS § 205A-1, et. seq., as it conflicts with and/or contradicts the purpose and intent of HRS § 205A-1, et. seq.
17. The BLNR's interpretation of HRS § 205A-1 to limit its analysis of the upper reaches of the wash of the waves for only the "current" season is contrary to the intent of the statute and public policy to preserve as much shore as reasonably possible for public use.
(Emphases added.) In its Decision and Order, the court vacated the BLNR's initial Decision and remanded to the BLNR with "specific instructions to appropriately consider and give due weight to [Petitioners'] proposed evidence and to correctly apply the applicable statutes, case law and administrative rules . . .
." On May 19, 2010, the court entered its judgment in the case.
Soon thereafter, on June 17, 2010 Dobbin and Wagner appealed from the court's final judgment to the ICA (first appeal), and the BLNR filed a cross-appeal on June 21, 2012.
The BLNR's Amended Decision
In the meantime, on May 21, 2010 in conjunction with the court's remand, the BLNR filed its Amended Decision. In addition to revising, to some extent, the findings in its first decision, the BLNR added additional findings and conclusions. Among the changes was the addition of a section in the findings titled "Prior Application for Shoreline Certification, " which discussed the DLNR's actions with respect to the 2005 Galloway application. The new findings also included, inter alia, the following statements:
27. The DLNR and State Surveyor also incorporate in their shoreline determination, any pertinent information about the shoreline that is presented by the owner of the subject property and any other member of the public that has personal knowledge and familiarity with the shoreline conditions of the subject property during high surf conditions in the season of high surf.
37. During the site visit the State Surveyor and DLNR staff noted that a different location, on the back of the frontal dune, was identified during a previous site visit on October 19, 2005; which was considerably further mauka than the proposed shoreline location in the Dobbin application.
38. The State Surveyor and DLNR staff also noted that there was no evidence that the wash of the waves had extended that far mauka in the past two winters, especially not during the immediately preceding winter season .
RECOMMENDATION OF THE STATE SURVEYOR
39. On May 28, 2008, in a letter to the [DLNR], the State Surveyor stated that the State of Hawai'i had no objections to adopting the dune crest as the shoreline location, as delineated on the map prepared by  Wagner.
4 0. This recommendation was based, at least in part, on the Galloway application, the Dobbin application, and the site inspection conducted on April 18, 2008.
41. At the time of the recommendation, the State Surveyor was aware that two years prior the recommended location of the shoreline for the  [p]roperty was further mauka than the current location.
The Amended Decision included a separate section of findings setting forth in more detail the evidence presented by Petitioners, and the BLNR's evaluation of that evidence. For example, the findings stated, inter alia, with respect to the Blair Declaration, that:
46. [Petitioner] Blair's testimony did not refer to specific observations she made of the shoreline, either as to the location of the highest wash of the waves or any dates when these high tides occurred.
47. [Petitioner] Blair also testified regarding photographs which were attached to [Petitioners'] Opening Brief at 9-12.
48. The photographs contained in Exhibits G through N of [Petitioners'] Opening Brief are date stamped, either on the photos or in the captions, with dates falling between 2004 and 2008.
49. [Petitioner] Blair testified that the photos show "the upper reaches of the wash of the waves during the season of the year in which the highest wash of the waves occurs on the Dobbin property." 
50. The photos enumerated in [Petitioner] Blair's testimony do not all contain depictions of waves.
51. It is not possible to ascertain from [Petitioner] Blair's testimony what was the object of specific photographs or what ...