In a decision clarifying its landmark 1995 case on Native Hawaiian
rights and practices, the Hawaii Supreme Court yesterday ordered a
state agency to consider those rights before approving a 1,009-acre
development in North Kona on the Big Island.
The high court set aside the state Land Use Commission,s 1996 decision
reclassifying the state designation for the land from conservation to
urban for the Kaupulehu Resort expansion.
The proposed development by Kaupulehu Developments includes a 36-hole
golf course, 530 single-family luxury homes, a recreation club and a
commercial center.
But in the 5-0 decision, the high court ruled that the commission
failed to adequately consider whether it was protecting the customary
and traditional rights of Native Hawaiians to go onto the property.
The court sent the case back to the commission.
The commission,s reclassification was challenged by several groups,
including Ka Paakai O Kaaina, an association of Ka Lahui Hawaii; the
Kona Hawaiian Civic Club and the Protect Kohanaiki Ohana.
The 47-page opinion, written by Associate Justice Mario Ramil, is an
extension of a 1995 high court decision that declared that Western
concepts of private property in Hawaii must be balanced with rights of
Native Hawaiians to go onto the land for traditional and customary
food-gathering, cultural and religious purposes.
Since then, the high court has been refining the parameters of those rights.
In 1998, it declared that the state Board of Land and Natural Resources
must address those rights before issuing a dredging permit for a
proposed 1,400-slip Ewa Marina project.
But that decision, which was not published, applied only to the parties
of that case and cannot be cited in other court cases as precedent.
Native Hawaiian rights ensured
Yesterday,s published opinion can now be used as a precedent and
applied to other state, city and county agencies considering proposed developments.
"Today, we provide an analytical framework ... to help ensure the
enforcement of traditional and customary Native Hawaiian rights while
reasonably accommodating competing private development interests," the
court said.
In explaining that framework, the court said the state Land Use
Commission must now:
Identify cultural, historic and natural resources on the land.
Determine the extent that resources, including traditional and
customary Native Hawaiian rights, will be affected by proposed developments.
Determine what "feasible" action, if any, the commission should take to
"reasonably" protect those rights.
Also, the high court said the commission cannot delegate those
obligations to the developer.
In the case at issue, the commissioners required the developer to
protect the Native Hawaiian rights. But the high court said the
delegation of the responsibility to protect those rights was not proper.
The commission must address those issues before reclassifying the land,
the justices ruled.
The 1,009 acres proposed for development in North Kona have features
linked with Hawaiian culture and history, the court said. King
Kamehameha I was associated with the area, which also has been used for
fishing and gathering of seaweed, opihi and salt.
The land is owned by Kamehameha Schools, formerly known as the Bishop
Estate, which was not involved in the court case, and leased to the developer.
Yesterday's decision 'significant'
Arnold Lum, staff lawyer with the Native Hawaiian Legal Corporation who
contested the Ewa Marina dredging permit, called yesterday,s decision "significant."
"It pretty much tells every administrative agency that presides over
land use matters that there is a certain administrative process they
have to follow," he said.
Big Island lawyer Michael Matsukawa, who represented three groups
challenging the reclassification, said the Hawaiian groups were angry
over the way cultural values are assessed and valued.
He said the groups aren,t anti-development, but now everyone will know
the process in evaluating Native Hawaiian rights and cultural values
before projects are approved.
"We were trying to clarify the process for the clients, the landowner
and the developer," Matsukawa said. "Even the developers, government and
public will benefit by knowing up front what these resources are. · The
issues can be addressed up front."
Big Island lawyer Ben Tsukazaki, who represents the developer, could
not be reached for comment.
The Hawaii Supreme Court,s 1995 landmark decision " Public Access
Shoreline Hawaii vs. Hawaii County Planning Commission, commonly known
as "PASH" " stalled a 450-acre project north of Kailua-Kona.
The project was abandoned by developer Nansay Hawaii after the U.S.
Supreme Court declined to hear an appeal of the state high court,s ruling.
But those familiar with the proposed Kaupulehu development said they
do not believe the project will suffer the same fate.
"I believe the outcome of this one will be quite different," said
Richard Albrecht, senior vice president of Hualalai Development Co., a
neighbor of Kaupulehu Developments.