Document Type

Case Note


Rapid development of coastline areas in Hawaii has sparked the attention of several native Hawaiian public interest groups. The growth of large resort hotels and condominiums along the beaches is eliminating areas once open for the exercise of traditional gathering practices. Tensions have risen between those interested in promoting the development of the land and those interested in preserving the traditional Hawaiian culture. In recent years, disputes have resulted in court challenges to state regulations permitting development on coastal properties. In Public Access Shoreline Hawaii v. Hawai 'i County Planning Commission, the Supreme Court of Hawaii unanimously upheld a lower court's decision that allowed an organization representing native Hawaiian interests to challenge the issuance of a Special Management Area (SMA) use permit. The court ruled that Public Access Shoreline Hawaii (PASH) had standing to participate in contested case hearings before the planning commission in order to challenge a proposed resort development' The court further stated that under the Hawaii Constitution, a state agency has an obligation to "preserve and protect" traditional and customary Hawaiian rights and an affirmative duty to consider potentially adverse effects on those rights when issuing SMA permits' Essentially, the court recognized that, with respect to developing lands, the developer's private property interest is subject to superior rights established by customary and traditional native Hawaiian gathering practices. The extent to which Hawaii has used and expanded the doctrine of custom to support traditional native Hawaiian practices and the public's access to coastal lands and waters is the subject of this Note. Part H provides a look at the legal background encompassing the doctrine of custom and Hawaii's recognition of customary practices. The court's decision in the PASH case is analyzed in Part III. Part IV discusses the consequences of the court's decision and how the decision supports public interest goals.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.