Trial Court Agrees with State on Stopping Unauthorized Erosion Control Measures on the North Shore of Oahu

This case serves as a cautionary tale for littoral landowners in Hawai‘i. It underscores the importance of understanding shoreline boundaries, obtaining proper permits for erosion control, and respecting the public trust doctrine.  

On September 24, 2024, the State of Hawai‘i filed a complaint against Joshua VanEmmerik, the owner of two residential properties in Haleiwa, for alleged unauthorized erosion control measures that have caused significant debris to fall onto State-owned beach lands and into the ocean. On September 26, 2024, the court granted a Temporary Restraining Order (TRO) to prevent further harm to the environment and public resources.

Here are key takeaways for littoral landowners from this case:

1. Understand Shoreline Boundaries

The State of Hawai‘i owns all land seaward of the “upper reaches of the wash of the waves.” As confirmed in County of Hawai‘i v. Sotomura (1973), this boundary typically aligns with vegetation lines or debris marks left by waves. Littoral landowners must be aware that any construction or erosion control measures that extend seaward of this boundary encroach on State land within Hawaii's Conservation Districts.

2. Unauthorized Erosion Control Measures Can Lead to Legal Action

In this case, VanEmmerik installed erosion control measures, such as geotextile tubes and other solid materials, without obtaining the required permits from the Department of Land and Natural Resources (DLNR). The court found that these unauthorized actions violated the State’s regulations for conservation districts and posed immediate environmental hazards.

Littoral landowners should be aware that all land use activities within Hawaii's Conservation Districts, including erosion control measures, are regulated under Hawai‘i Revised Statutes (HRS) § 183C. Unauthorized actions can lead to enforcement actions, fines, and the need for costly removal of the materials.

3. Permitting Is Critical for Shoreline Management

The State regulates land uses within the Conservation District through a strict permitting process implemented by DLNR's Office of Conservation and Coastal Lands. As highlighted in this case, the owner had requested emergency permits to install erosion control devices but was denied due to prior violations. Littoral landowners must ensure compliance with permit requirements for any activities that may affect coastal lands and submerged lands. Failure to obtain proper permits may result in legal consequences and prevent future emergency approvals.

4. Public Trust Doctrine and Environmental Protection

Hawai‘i’s public trust doctrine ensures that shoreline areas, including beaches and submerged lands, remain open for public use and are protected from environmental harm. In this case, the debris from VanEmmerik’s property blocked public lateral access along the shoreline and created hazards for beachgoers and marine life. Littoral landowners should recognize that their property rights end where the public’s rights begin, and they are obligated to ensure their actions do not infringe on public trust resources.

5. Proactive Compliance Can Prevent Greater Liability

Proactively addressing shoreline erosion in a manner that complies with State regulations can prevent significant legal liability. In this case, the State is seeking declaratory relief, injunctive relief, and damages to restore the impacted shoreline. For landowners, this serves as a reminder that acting prudently to manage erosion and comply with legal requirements is essential to avoiding costly litigation and damage to natural resources.