PASH: No One Legacy For Hawai'i Land Use And Shoreline Public Access

• Published date: 12 November 2021
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Cades Schutte LLP
• Author: Roy A. Vitousek III

Edited by Ellen R. Ashford

In 1995 I argued Public Access Shoreline Hawaii v. Hawai'i Planning Commission, commonly known as "PASH," before the Supreme Court of Hawai'i.¹ The increasing development of coastline on the island of Hawai'i resulted in community opposition to the County's issuance of a Special Management Area (SMA) use permit for a proposed resort development. The issue was whether a public interest group had legal standing to participate in contested case hearings before the planning commission as it considered whether to grant a special management area use permit which the court answered in the affirmative. The court ruled that the landowner's private property rights were not absolute and that before it could grant development permits the Planning Commission had to consider the rights and interests arising out of traditional and customary native Hawaiian gathering practices.

The United States Supreme Court declined to review the PASH decision and in the quarter-century since, the appellate courts in Hawai'i have worked to balance traditional notions of property rights'including the right to exclude'with the traditional and customary right of access.

As a practical matter, PASH led to the establishment of public access to beaches across land that is "less than fully developed."² The recognition that land use decisions must be made only after the impact of the proposed use on important cultural resources or practices has been meaningfully assessed, however, has continued to expand in the law as well as state, county, and community programs.

Upon being asked last year to reflect on the legacy of PASH, I find there is no one answer, no one legacy, positive or negative, and no one theme that brings together thirty years of trying to develop and implement a legal construct which enables people who are closest to the land to have their interests thoughtfully and rigorously taken into consideration where land uses are proposed which could adversely impact important cultural resources or practices. Instead, there are positive aspects of the PASH legacy and aspects that are not positive, or not-yet positive. I advocate a model of PASH rights based on mutual best interests of all people on the land that reflects the modern expression of traditional Hawaiian culture.

I. The Positive Legacy of PASH

A. Agency Decisions

There are now clear legal requirements and criteria for cultural impact assessment, historic preservation review, and formal consideration of customary and traditional practices as part of assessing applications for most forms of permits and approvals which would authorize the development.³ This is the most important, most concrete result of PASH.

Nearly every government permit which would authorize development of previously undeveloped land, by law, cannot be approved unless a formal assessment of historic sites, cultural resources, and cultural practices is conducted and formally considered by the approving agency.⁴ This includes district boundary amendments,⁵ changes in zoning,⁶ special management area use permits,⁷ conservation district use permits, shoreline setback variances, any actions which trigger HRS Chapter 343, special permits, use permits, subdivision applications, and grading permits for more than one acre. These changes, largely implemented by state statutes, county ordinances, and state and county regulations, have increased both public outreach before applications are filed and public notice of applications and hearings.

It is the big cases which blossom into community-wide controversy that get the attention of the appellate courts, the greater community, and the media. Certainly, the Thirty Meter Telescope at the Mauna Kea Science Reserve (TMT) is such a case.⁸ But when I personally look at the real on-the-ground...