On January 15, 2013, the HAWSCT granted cert in Caren Diamond & Beau Blair v. Craig Dobbin, Wagner Engineering Services, Inc., and State of Hawaii, Board of Land and Natural Resources, SCWC-30573 & SCWC-11-0000345, a case involving the level of deference that should be afforded the Board of Land and Natural Resources (BLNR) in its shoreline certification.
This case involves property located on Kauai. After having the property surveyed, a shoreline certification application was submitted to BLNR. The State surveyor recommended certification at the dune crest. BLNR agreed.
The circuit court reversed and vacated the BLNR decision. On appeal, the ICA reversed the circuit court’s decision. According to the ICA, “the circuit court erred in failing to give proper deference to BLNR’s findings of facts in certifying the shoreline boundary.” Slip. Op. at p. 8. The ICA also held that “[t]he circuit court’s characterization of BLNR’s findings as only allowing evidence from the current year to determine the upper reaches of the wave is a misstatement of BLNR’s findings” because the Board “did not restrict its analysis of the upper reaches of the waves to the current year.” Id. Rather, BNLR considered the historical evidence presented by Diamond and Blair, but did not find the evidence compelling. Id.
On cert, Diamond and Blair argue that the ICA erred in affording the BLNR’s decision any deference because – as the circuit court held – the BLNR erred in shoreline certification.
Oral arguments are scheduled for February 7, 2013 at 10 AM.
The HAWSCT’s Order accepting cert is available here.
The ICA’s Memorandum Opinion (J.J. Foley, Fujise, & Leonard) is available here.
The cert application is available here.