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

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VITOUSEK:ThatÓs not my point, Mr. Yuen. My point is that when you Î. YUEN:Well, IÓm missing your point. VITOUSEK:I think so. My point is that when you are protecting an individualÓs exercise of their right to a cultural practice, then you are, then you are protecting a native Hawaiian customary and traditional right as opposed to preserving a physical resource. And what you just told me is that you have the right in the context of the SMA to preserve a physical resource, and no one doubts that. But, but the question is whether 205A gives you the authority to require protection of native Hawaiian customary and traditional rights where the constitution would give you no, no obligation and no power to preserve those rights. YUEN:The statute can, the statute, there are obligations to the Planning Commission to respect and to try to protect cultural resources. And the statute can do that even if there is, even for a right that is not in itself constitutionally based. So what weÓre doing -. YouÓre strictly operating under, under the responsibilities under 205A. Had PASH, had PASH never been decided, had there never been a reaffirmation that traditional and customary rights exist over private propert still could have imposed the same kinds of conditions strictly based on 205A. VITOUSEK:And, to summarize, so your position is that under 205A, the Planning Commission could require an owner of a fully developed property to hold his property open for the exercise of native Hawaiian customary and traditional rights under authority of 205A, even if PASH said those rights do not exist, even if PASH and Hanapi say those rights do not exist under the constitution? YUEN:You mean to come onto the property? VITOUSEK:Yes. YUEN:And exercise those rights? VITOUSEK:Yes. I do. YUEN:Possibly. If there were, if there were testimony that their right was being, that this was being exercised, I think that itÓs possible that that would be a cultural resource under 205A and that could be imposed as a condition. You get into, at that point, you get into questions, you get into questions of physical invasion because of the constitution. And thatÓs one of the reasons why PASH was so important. That under constitutional law, the question about there being an easement for people to go onto your property is a little different than the question about providing setbacks, for example, which are routine in planning law, or even providing landscaping, which is routine in planning law and routine practice. So thatÓs, thatÓs the caveat I have on that point. 22