2003-07-28 TBLASMAN (4) - Laserfiche WebLink

Home

as a native practitioner having, feeling that theyÓre in a setting like that of old HawaiÒi in going to Keakealaniwahine site, that interest is, the legal basis for trying to protect that interest is under Chapter 205A and those provisions that I cited earlier. ItÓs not arising specifically from sources cited by the HawaiÒi Supreme Court in the PASH case. So thatÓs why. And because of the Hanapi case, IÓm not citing, IÓm not using PASH as a basis for that, for that expectation or that right. VITOUSEK:But are you using the, the protection of cultural resources under 205A to impose a restriction that goes further than you would be entitled to do under PASH even if the property were not developed? In other words Î. YUEN:No, I think, I think if we were dealing with undeveloped property, that we would, we would have to do a PASH-type analysis. And then that analysis would extend outside the property boundaries as well to what people are doing on, on adjacent properties. And I think we have done that in other SMA permits. VITOUSEK:Okay. But if you were doing it with respect to a developed property, and if you were doing an assessment with respect to a developed property, it would be your conclusion that, and in the absence of an SMA context, right, wouldnÓt you have to conclude that there are no native Hawaiian customary and traditional rights which will impair a private landownerÓs use and development of their own developed property? In other words, isnÓt that the holding of Hanapi? YUEN:Right. If this were not an, if there were not an SMA permit involved here, certainly we, there would be no authority, because this is devel authority to bring in PASH and say that you had to accommodate native Hawaiian rights on the property. VITOUSEK:But wasnÓt the intent of PASH and the intent of Hanapi to try to reconcile the exercise of customary and traditional rights with the modern realities of fee simple property ownership in Hawaii? YUEN:ThatÓs part of it. I think the PASH, one purpose of the PASH case was to point out that these rights still existed. And then the court instructed agencies handling land use permits like the Planning Commission, like this body here of hearings officers, like myself to try to make a balance and accommodation of those rights. This analysis does not directly apply to this Blasman property because of Hanapi. However, under Chapter 205A, you still have a similar, youÓre still trying to make a similar balancing of rights and interests. VITOUSEK:The HawaiÒi Supreme Court cases that have evaluated the extent and nature of cultural and traditional rights are useful in determining what, what these rights are and what cultural values deserve protection in the context of land use development, isnÓt that correct? 19