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

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YUEN:To the extent that particular practices have come to them, VITOUSEK:And so in, when you interpret HRS 205A and its specific requirements for preservation of natural and cultural, IÓm sorry, natural and manmade historic and prehistoric resources in the coastal zone, doesnÓt that to some extent involve an assessment of whether there is a constitutionally protected nati and traditional right involved? YUEN:Partially, yes. VITOUSEK:And so if youÓre talking about protecting the experience of a native practitioner as opposed to preserving a specific physical site, arenÓt you really talking about preserving a native Hawaiian customary and traditional right as opposed to a specific historical site itself? I mean, isnÓt it a right you are preserving, that is a right to a particular viewplane, as opposed to a feature or structure? YUEN:With the same caution that I expressed earlier about the use of the term Ðright.Ñ What IÓm trying to accomplish in imposing, in imposing development in this property is to protect the experience that a cultural practitioner and members of the general public may have, rather than the physical structures that are on the Keakealaniwahine property, yes. VITOUSEK:So you are saying that the exercise of the right to be on a cultural site and have a particular viewplane poses a limitation on Mr. BlasmanÓs use of his developed property, isnÓt that correct? YUEN:In my view that is something that should be, the use of his property should be limited to accommodate that, yes. VITOUSEK:And so somehow that, whatever that is, whatever that right or expectation is, limits Mr. BlasmanÓs ownership rights with respect to his property because the government may impose a condition on his use of his property to preserve those rights or practices, isnÓt that correct? YUEN:Yes. VITOUSEK:And yet you acknowledge that you could not do that directly under Hanapi or PASH or any other of the statutes other than 205A which protects the exercise of customary and traditional rights, isnÓt that correct? YUEN:I could not use PASH to require access to Mr. BlasmanÓs property under, because of the Hanapi case. VITOUSEK:And thatÓs because Hanapi and Judge Klein, the author of PASH and Hanapi said, to clarify PASH, we hold it if a property is deemed to be fully developed, i.e. lands zoned and used for residential purposes with existing dwellings, improvements, 20