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: editor@mauinews.com

 

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.

 

  • Government has a duty to protect traditional rights. These are undefined. Pelayo gave the example of ``hunting with a Jeep, rifle and dogs.'' Is that traditional?

     

  • PASH rights cannot be canceled because they may conflict with western law, which gives landowners great control.

    In Hawaii, a private owner's use must be consistent with other customs, so long as they were exercised every year ``from time immemorial'' and in a peaceful manner.

     

  • Royal patents confirmed only a limited property interest, not the exclusivity contained in western fee simple titles.

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