Hawaii Beach Access Law
Public Access on Beaches and Shorelines
- The public has a right of access to and along all beaches and shorelines in the State situated below the
“upper reaches of the wash of the waves.” HRS Secs. 115-4 & 115-5.
- Generally, the Counties have the primary authority and duty to develop and maintain public access to
and along the shorelines. HRS Secs. 46-6.5, 115-5 & 115-7.
- The State’s primary role in the shoreline area is to preserve and protect coastal resources within the
conservation district and support public access along and below the shoreline. HRS Chap. 205A.
- In limited circumstances, the State, under its Na Ala Hele Program, is responsible for management
and maintenance of public rights-of-way that are part of the Na Ala Hele trail system of “ancient
trails” that are identified and established public trails with documented historical use and significance.
Unlike other public rights-of ways that may exist by virtue of an easement, the Na Ala Hele trails are
owned by the State and may lead to and from the shoreline and also provide lateral access along
shorelines. HRS Sec. 264-1.
- An inventory of public rights-of-ways should be available at the respective County planning offices
and a list of Na Ala Hele trails are available at DLNR’s Na Ala Hele Division.
- Members of the public seeking the establishment or enforcement of public beach access should seek
the assistance of the appropriate County agencies tasked with that responsibility.
- The State, and DLNR in particular, has been eagerly supportive of County efforts to establish and
maintain public access.
- If private homeowners are obstructing existing public rights-of-way to the shoreline, HRS Sec. 115-9
provides a remedy and up to a $2000 penalty for that kind of situation.
§115-2 Acquisition of lands for public rights-of-way and public transit corridors. When the
provisions of section 46-6.5 are not applicable, the various counties shall purchase land for public rightsof-
way to the shorelines, the sea, and inland recreational areas, and for public transit corridors where
topography is such that safe transit does not exist. [L 1974, c 244, §2; am L 1977, c 164, §4]
[§115-3] Criteria for public rights-of-way. A distance at reasonable intervals taking into consideration
the topography and physical characteristics of the land the public is desirous of reaching is established as
the maximum between public rights-of-way for the purposes of this chapter. [L 1974, c 244, §3]
§115-4 Right of transit along shorelines. The right of access to Hawaii’s shorelines includes the right of
transit along the shorelines. [L 1974, c 244, §4; am L 1991, c 37, §2]
[§115-5] Transit area and public transit corridor defined. The right of transit along the shoreline
exists below the private property line which is defined as being along the upper reaches of the wash of
waves, usually evidenced by the edge of vegetation or by the debris left by the wash of waves. However,
in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit
for the public along the shoreline below the private property lines, the counties by condemnation shall
establish along the makai boundaries of the property lines public transit corridors which shall be not less
than six feet wide. [L 1974, c 244, §5]
[§115-7] State and county co-sponsorship of programs. The department of land and natural resources
shall enter into agreements with the council of any county providing for the acquisition of public rightsof-
way and public transit corridors pursuant to this chapter; provided that the county shall match the funds
which have been appropriated by the legislature. The development and maintenance of the rights-of-way
and public transit corridors shall be the responsibility of the county. [L 1974, c 244, §7]
[§115-9] Obstructing access to public property; penalty. (a) A person commits the offense of
obstructing access to public property if the person, by action or by having installed a physical
impediment, intentionally prevents a member of the public from traversing:
(1) A public right-of-way;
(2) A transit area; or
(3) A public transit corridor;
and thereby obstructs access to the sea, the shoreline, or any inland public recreational area.
(b) Physical impediments that may prevent traversing include but are not limited to the following:
(1) Gates;
(2) Fences;
(3) Walls;
(4) Constructed barriers;
(5) Rubbish;
(6) Security guards; and
(7) Guard dogs or animals.
(c) Obstructing access to public property is a misdemeanor.
(d) Minimum fines for violation under this section shall be as follows:
(1) $1,000 for a second conviction; and
(2) $2,000 for any conviction after a second conviction.
(e) As used in this section:
“Person” means a natural person or a legal entity.
“Public recreational area” means public lands or bodies of water opened to the public for recreational use.
[L 2004, c 169, §2]
[§46-6.5] Public access. (a) Each county shall adopt ordinances which shall require a subdivider or
developer, as a condition precedent to final approval of a subdivision, in cases where public access is not
already provided, to dedicate land for public access by right-of-way or easement for pedestrian travel
from a public highway or public streets to the land below the high-water mark on any coastal shoreline,
and to dedicate land for public access by right of way from a public highway to areas in the mountains
where there are existing facilities for hiking, hunting, fruit-picking, ti-leaf sliding, and other recreational
purposes, and where there are existing mountain trails.
(b) These ordinances shall be adopted within one year of May 22, 1973.
(c) Upon the dedication of land for a right-of-way, as required by this section and acceptance by
the county, the county concerned shall thereafter assume the cost of improvements for and the
maintenance of the right-of-way, and the subdivider shall accordingly be relieved from such costs.
(d) For the purposes of this section, “subdivision” means any land which is divided or is proposed
to be divided for the purpose of disposition into six or more lots, parcels, units, or interests and also
includes any land whether contiguous or not, if six or more lots are offered as part of a common
promotional plan of advertising and sale.
(e) The right-of-way shall be clearly designated on the final map of the subdivision or
(f) This section shall apply to the plan of any subdivision or development which has not been
approved by the respective counties prior to July 1, 1973. [L 1973, c 143, §2]
Hawai`i Supreme Court Issues Landmark Decision on Public Access to Beach
Shoreline reaffirmed at highest wash of waves; use of induced vegetation rejected
October 25, 2006
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Honolulu, HI — The Hawai`i Supreme Court has issued a ruling strongly reaffirming that the shoreline in Hawai`i, which marks the boundary between public beach and private land, extends to the highest wash of the waves, and rejecting the use of artificially planted vegetation to determine the shoreline. The case on appeal, Diamond v. State, involved a challenge by North Shore Kaua`i residents Caren Diamond and her attorney, Harold Bronstein, of the decision of the Chairperson of the state Department of Land and Natural Resources (DLNR) to certify the shoreline of a lot on Kaua`i’s North Shore based on vegetation the landowner planted and propagated to create a false shoreline further makai (seaward). Earthjustice, on behalf of citizen groups Public Access Shoreline Hawai`i and Sierra Club, Hawai`i Chapter, filed an amicus brief in support of Diamond and Bronstein’s appeal.
The court, in a unanimous decision, reversed the state’s decision and held that the shoreline should be established “at the highest reach of the highest wash of the waves.” In so ruling, the court reaffirmed its long-standing precedent from the late-60s and early-70s, in which the court established the shoreline at the high water mark, “usually evidenced by the edge of vegetation or the line of debris left by the wash of the waves.” In recent years, the state and landowners misinterpreted this precedent to emphasize use of the vegetation line as the shoreline, even when the debris and wash of the waves extended further inland. The court’s latest decision rejected this misinterpretation and confirmed that the ultimate measure of the shoreline is the high water mark.
The court also clarified the role of the “vegetation line” and “debris line” as indicators of the shoreline. The court ruled that the vegetation line trumps the debris line only when the vegetation line lies “more mauka” (inland) than the debris line and furthers the public policy of “extending to public ownership and use as much of Hawaii’s shoreline as is reasonably possible.”
The court also ruled that the state erred in using artificially planted and propagated vegetation to determine the vegetation line based on the reasoning that the vegetation survived more than a year. The court cited the public policy of protecting shoreline resources and extending public shoreline uses and emphatically “reject[ed] attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties.”
“I am pleased that the Court acknowledged the principles we have been articulating all these years,” said Caren Diamond, who, together with Bronstein and other community members, have resisted attempts by landowners to extend their lots onto public beach with artificially planted vegetation. “Now, our government officials need to start enforcing the law and stop vegetative encroachments that are causing the loss of our sandy beaches.”
The court’s decision follows on the heels of the state’s recent amendment of agency rules, effective June 2006, to remove any preference for the vegetation line over the debris line in the determination of shorelines, an issue first raised years ago by Diamond and Bronstein in their challenges to the location of certified shorelines. The rule amendment was the product of a settlement of a lawsuit brought in 2005 by Earthjustice on behalf of citizen groups Public Access Shoreline Hawai`i and Sierra Club, Hawai`i Chapter. The state rendered its decision in the Diamond case in 2004.
“We appreciated the opportunity to work with Chair Peter Young and DLNR to fix the problem of the agency’s shoreline definition,” said Earthjustice attorney Isaac Moriwake. “However, landowners still persist in planting vegetation and calling it the shoreline. This ruling sends a clear message that the game is over.”
In recent years, intensifying public controversy has focused on the ongoing loss of beaches statewide caused by coastal development too close to the ocean. One of the leading concerns is the widespread use of induced vegetation by landowners and surveyors to manipulate the shoreline further makai and to justify building closer to the ocean. This not only invades public beach and blocks public access, but also paves the way to the eventual erosion and loss of the beach, ironically to the detriment of the landowner as well as the public. According to coastal geologists, one-fourth of Oahu’s beaches and one-third of Maui’s beaches have already been lost, largely because of development too close to the ocean.
“The supreme court’s ruling vindicates the public’s rights to shoreline access and use,” said Jeff Mikulina, Executive Director of the Sierra Club, Hawai`i Chapter. “But we still need our state and county officials to get serious about protecting these rights from getting buried under walls of vegetation and concrete.”
“I applaud the tireless, personal efforts of Ms. Diamond and other citizens across this state seeking to defend the public’s right of beach access,” said Claudia Rohr, board member of Public Access Shoreline Hawai`i. “This victory belongs to them, as well as all the people of Hawai`i.”
Contact:
Isaac Moriwake, (808) 599-2436
Caren Diamond, (808) 826-5150
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