Access law raises many questions
Harry Eager, Staff Writer
Maui, Hawaii 96793
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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.
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.
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.''
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.
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.
judge, William Richardson, never forgot how his access rights were
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.
however, left numerous areas undefined.
session of the Legislature is likely to try to settle some of those
areas, Pelayo said.
of access rights is complicated, but it traces back to a Kingdom
Supreme Court decision of 1858.
established a principle that if a right was not mentioned in the
Hawaii Revised Statutes, "it does not exist.''
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.
rights were limited to items for personal use and also generally to
residents of the ahupuaa where the rights had traditionally been
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
for the only time in almost 150 years, the courts tightened up on
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.
1992, in Paty vs. Pele Defense Fund,
the judges said rights were not necessarily limited to residents of an
opened the door to exercise of native rights by non-natives.
years later, the case known as PASH II seemed to open the doors wide.
said the ambiguous wording creates at least nine new duties or sources
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?
rights cannot be canceled because they may conflict with western
law, which gives landowners great control.
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.
patents confirmed only a limited property interest, not the
exclusivity contained in western fee simple titles.
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.
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.
the crowd spoke darkly of an ultimate interpretation of PASH that
would bring an end to all land transfers in the islands.
also been speculated that descendants of non-Hawaiians who were
citizens of the kingdom could have native rights.
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.
claimant doesn't have to be a descendant of a person who was
exercising the traditional right before 1892.
rights may apply to all land.
some traditional practices may not be permitted, the court did not
say which ones.
court was, however, explicit on one point. PASH rights do not,
Klein wrote, constitute a taking of private property.
changes raise several question, Pelayo said:
is customary and traditional? PASH rights have been asserted in
parking a lunch wagon at a construction site.
evidence establishes rights?
dispute, who has the burden of proof?
are rights claims unreasonable?
body determines what native rights are -- the courts, Office
of Hawaiian Affairs, counties?
a Native Hawaiian?
liable for acts done in the name of PASH; for example, if someone
PASH rights encumbrances on a title or inherent in it? That is,
encumbrances can sometimes be bought out, but inherent rights are
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.
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.''
law has precedence? Can PASH override, for example, the federal
Endangered Species Act?
happens if a landowner arrests someone for trespass and the
arrested person raises a PASH defense?
said "these questions need to be resolved to get Hawaii's economy
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