Public Access
Shoreline Hawaii (PASH)
PASH Access law raises
many questions
October 10, 1997
By Harry Eager, Staff Writer
The Maui News
100 Mahalani Street
Wailuku, Maui, Hawaii 96793
http://www.mauinews.com
To submit a Letter to the Editor: [email protected]
Wailea, Maui, Hawaii - More than two years after the Hawaii
Supreme Court issued its PASH
-- Public Access Shoreline Hawaii -- decision, nobody is sure what
it allows people to do, or which people.
But it has the real estate business worried.
A full room listened to Keahi Pelayo give a historical summary of
access rights Thursday at the Hawaii Association of Realtors state
convention at the Aston Wailea Resort.
Pelayo, a Lahainaluna graduate who is head of the Hawaiian affairs
section of the association's Legislation Committee, started out by
saying, "There are no answers today.''
Hawaiian rights have always had legal protection, under the
kingdom, the republic, the territory and the state; though there have
been instances when those legal protections were not worth much.
Pelayo told the story of how beach boys at Waikiki who chased a
little boy off the beach could not have known that the boy would grow
up to be chief justice of the state Supreme Court.
That judge, William Richardson, never forgot how his access rights
were denied.
Although Richardson had long since left the bench, the concern to
somehow preserve access rights was still in evidence when PASH was
written by Associate Justice Robert Klein in August 1995.
Klein, however, left numerous areas undefined.
The next session of the Legislature is likely to try to settle some
of those areas, Pelayo said.
The story of access rights is complicated, but it traces back to a
Kingdom Supreme Court decision of 1858.
That established a principle that if a right was not mentioned in
the Hawaii Revised Statutes, "it does not exist.''
At that time, the statute book listed seven rights of gathering: of
firewood, house timbers, aho cord, thatch, ti, drinking water, running
water; and an access privilege by right of way over private land.
These rights were limited to items for personal use and also
generally to residents of the ahupuaa where the rights had
traditionally been practiced.
The 1978 state Constitution gave the government a duty to
positively protect subsistence and cultural rights but still seemed to
limit them to residents of the ahupuaa (the usually pie-shaped
traditional land divisions that ideally went from sea to mountaintop
and included all the various ecosystems that provided for the needs of
life in pre-Contact days).
In 1982, for the only time in almost 150 years, the courts
tightened up on gathering rights.
The Kalipi vs. Hawaiian Trust
decision said rights could be used only on undeveloped land, nor could
rights claims be used to interfere with an owner's right to develop
his land.
But in 1992, in Paty vs. Pele
Defense Fund, the judges said rights were not
necessarily limited to residents of an ahupuaa.
And they opened the door to exercise of native rights by
non-natives.
Three years later, the case known as PASH II seemed to open the
doors wide.
Pelayo said the ambiguous wording creates at least nine new duties
or sources of conflict.
Pelayo said some people have even argued that this means that
titles not originating in royal patents -- that is, those recorded in
the Land Court -- may not have a legal existence.
This is the kind of thing that gives Realtors fits. Even a hint of
defective title is sometimes enough to kill, or at least delay, a
sale.
Some in the crowd spoke darkly of an ultimate interpretation of
PASH that would bring an end to all land transfers in the islands.
- Claimants of rights do not have to live in the ahupuaa.
- Claimants may not have to be Hawaiian. The Klein decision left
open the question of non-Hawaiians who were adopted (hanai) by
Hawaiians.
It has also been speculated that descendants of non-Hawaiians who
were citizens of the kingdom could have native rights.
The extent of these rights is being tested in small ways all over
the state. Pelayo cited an instance when a landowner challenged a man
hunting pigs on his property.
The man, a non-Hawaiian with part-Hawaiian children, explained that
he was exercising his son's gathering rights.
- The claimant doesn't have to be a descendant of a person who was
exercising the traditional right before 1892.
- PASH rights may apply to all land.
- Though some traditional practices may not be permitted, the
court did not say which ones.
- The court was, however, explicit on one point. PASH rights do
not, Klein wrote, constitute a taking of private property.
These changes raise several question, Pelayo said:
- What is customary and traditional? PASH rights have been
asserted in parking a lunch wagon at a construction site.
- What evidence establishes rights?
- In a dispute, who has the burden of proof?
- When are rights claims unreasonable?
- What body determines what native rights are -- the courts, Office
of Hawaiian Affairs, counties?
- Who is a Native Hawaiian?
- Who is liable for acts done in the name of PASH; for example, if
someone is injured?
- Are PASH rights encumbrances on a title or inherent in it? That
is, encumbrances can sometimes be bought out, but inherent rights
are perpetual.
- What disclosures do real estate agents need to make? Though no
standard declaration form has been devised, Pelayo said agents had
better tell their clients about PASH.
- What is less than fully developed? Fully developed land is
exempt from PASH claims, but some claimants have asserted that
even downtown Honolulu is not "fully developed.''
- Which law has precedence? Can PASH override, for example, the
federal Endangered Species Act?
- What happens if a landowner arrests someone for trespass and the
arrested person raises a PASH defense?
Pelayo said "these questions need to be resolved to get
Hawaii's economy moving again.''
Return to the Hawaiian
Independence Home Page, or the News
Articles Index
http://www.hawaii-nation.org/access.html
Additional researched, recommended
reading:
http://www.hawaii-nation.org/pash.html
http://www.surfrider.org/stateofthebeach/05-sr/state.asp?zone=IS&state=HI&cat=ba
