Native Hawaiian Gathering Rights: The PASH Study Group Report
Price of Paradise · Hawaii Public Radio · aired 1998-01-25
Guests: Hannah K. Springer (Trustee, Office of Hawaiian Affairs); Walter Heen (retired judge, Hawaii Intermediate Court of Appeals); Dan Davidson (Executive Director, Land Use Research Foundation of Hawaii)
Duration: 1:04:46

[00:00:04] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise show. We're broadcast live Sunday mornings on KHPR and KKUA, and then rebroadcast Sunday evenings beginning at 8:00 on KIFO. Everyone who works to bring this program to you is a volunteer who believes in the importance of lively and informed public dialogue. We believe the brightness of any community's future is directly related to the level of activity in its marketplace of ideas.
[00:00:31] Randall Roth: Today's topic has to do with native gathering rights and our community's efforts to work out some sort of compromise between the folks on one side who would prefer little or no regulation and the folks on the other who, truth be told, probably would like to see these rights totally eliminated. With me this morning to discuss this controversial topic are Hannah Springer, Walter Heen, and Dan Davidson. Dan is the executive director of the Land Use Research Foundation of Hawaii, it's sometimes referred to as LURF. He has degrees from Claremont Men's College and UCLA School of Law and has specialized in land use law and land use planning in Hawaii since 1979.
[00:01:13] Randall Roth: On behalf of LURF, he regularly appears before state and county legislative bodies and agencies regarding land use, infrastructure, housing, water, and environmental issues. I think of Dan first when I want to know where the development community stands on any particular issue. Hannah Kihulani Springer is a kamaaina of the Ahu Pua'a of Kuupu Lehu on Kekaha North, North Kona. She lives there with her husband and their children, who are the sixth generation to live there. The family maintains a lifeway of their homeland, gathering salt from the coast, Kolimano, practicing dryland forestry in the uplands of Hikuhia, farming on Kukuioy, Kukuioy, and remaining attentive to the Wahipana of the Kaha lands.
[00:02:06] Randall Roth: Walter Heen has led many lives. He served as a US attorney, county councilman, state legislator, intermediate court of appeals judge, and a member of just about every task force, study group, and committee known to mankind. He also is one of the five co-authors of the Broken Trust article. Walter, Hannah, and Dan, good morning.
[00:02:27] Walter Heen: Aloha.
[00:02:28] Randall Roth: Good morning. Walter Heen, this PASH case is something that by now, I think all of our listeners have at least heard something about. Some of our listeners know a lot about it. Just real quickly, to get this conversation started, what is the PASH case?
[00:02:47] Walter Heen: You're asking me? And, and I might mention in case you don't, uh, you actually decided the PASH case at the lower level before it got to the Supreme Court, so you personally were very much involved in the history of this case.
[00:03:03] Randall Roth: Yeah, I didn't mean, I wasn't looking for that, but okay.
[00:03:07] Walter Heen: What is it? The PASH case involved the assertion by a native Hawaiian and a non-profit group that traditionally and customarily and historically, this native Hawaiian, uh, Mahia Lani Pai, had the right of access to Angeline ponds, brackish water ponds on the land in Kohanaiki, which the Nansay Hawaii Corporation wanted to develop into a resort area. And he was denied the right to contest or to ask for a contested case hearing by the Hawaii Public, Hawaii County Planning Commission.
[00:03:52] Walter Heen: And he appealed from that or he and PASH both appealed from that decision, and at the Circuit Court level, the court held that the Planning Commission was wrong, that Mr. Pai and PASH did have standing to ask for a contested case hearing in order to examine all of the evidence that PASH, that Nansay wanted to introduce to support its development. Nansay then appealed to the Intermediate Court of Appeals, where we sustained the Circuit Court with respect to Mr. Pai and PASH, but we reversed them with respect to another individual who was asserting certain religious rights.
[00:04:34] Walter Heen: The case then went on appeal from by Nansay to the Supreme Court. And at the Supreme Court, they affirmed us and the lower Circuit Court. But the Supreme Court went somewhat further than the Circuit, than the Intermediate Court of Appeals. In fact, quite much further.
[00:05:01] Randall Roth: And what is is somewhat controversial in the legal community, the Supreme Court used that as a springboard into something that really hadn't even been argued up into that point in time.
[00:05:10] Walter Heen: As, uh, as Dan often points out, we decided the issue of standing, and it was a planning issue really that we decided. The Supreme Court really turned it into an issue on regarding title.
[00:05:21] Randall Roth: And what did the Supreme Court do?
[00:05:23] Walter Heen: In essence, the nut of the Supreme Court opinion is that every landowner who owns real property in Hawaii, has received a bundle of rights which are not as extensive as landowners receive elsewhere in the Anglo Saxon system of law. What the, what the Supreme Court said was the landowner does not have total power or authority to exclude native Hawaiians who wish to access his property for traditional and customary Hawaiian practices. Um, well that's the nut. Okay.
[00:06:07] Randall Roth: I tell you what, let's let's stop there and go to Dan Davidson, whom we think of as as a a spokesperson on behalf of the development community. And Dan, what is it without going back and rearguing Pash, if we take that as a starting point, what is it about what the Supreme Court of Hawaii did in Pash that is of concern to the what I'll call the development community?
[00:06:31] Dan Davidson: Well, before I answer your question, a couple of quick caveats. One, in terms of your lead-in, nobody that I work with at LURF or the Hawaii Business Roundtable or any of the other organizations that are working on PASH issues, has any interest in eliminating traditional and customary practices and rights. That, that isn't even a consideration. Secondly, I think that the the study group is starting to get us on the road to, uh, solutions rather than merely restating the problem. But with those two, I'll I'll quickly give you the problem. Uh, it's a question of uncertainty.
[00:07:11] Dan Davidson: As as Walter mentioned, the appellate court decision was a significant land use decision. I don't want to minimize it, but I don't think we'd be sitting here, uh, if the Supreme Court had merely affirmed that decision. In what's mostly dicta, they they raised enormous questions in our minds about, uh, traditional and customary practices.
[00:07:41] Randall Roth: And dicta means that that they weren't really talking about the controversy in front of it in front of them or they weren't deciding it, but it's in the opinion nonetheless and so it has some authority to it.
[00:07:51] Dan Davidson: It sure does. And it, uh, it basically for title companies or for people trying to do land transactions, substantially sort of created our lack of understanding of who, what, when, and where regarding traditional and customary practices. So from a transactional point of view, we don't know who can do what, we don't know where and we don't know when. So those are those are the substantial uncertainties that were created.
[00:08:24] Randall Roth: And from your article in the advertiser, I get the impression that that you think we we aren't really noticing much impact of that now because the economy is in such bad shape that it's it's more or less masking what eventually will be a major impact on the economy.
[00:08:42] Dan Davidson: It could be. Uh, it's already been an issue for title companies. It's already been an issue in the the transactions for raw, undeveloped land that we've had, but people for the most part have been able to work through it. So the concern is, uh, when we get to a normal economic level again, both in terms of transactions and in terms of land use processing, that PASH, unclarified or unanswered, will then become very significant.
[00:09:13] Randall Roth: Okay. Hannah Springer, good morning.
[00:09:15] Hannah K. Springer: Good morning.
[00:09:16] Randall Roth: And I apologize for stumbling over uh some of the the Hawaiian words in my uh little biographical sketch that I had for you. Um, could you tell us what is it about PASH that that you like, what is it about the development community's reaction to PASH that you don't like? Um, give us some sense for for where practitioners of gathering rights such as yourself, for where you are on PASH right now?
[00:09:45] Hannah K. Springer: Yes, certainly. The lands of Kohanaiki, which are the subject property of the public access shoreline, Hawaii, are near and dear to me as they are part of that homeland which you in part described known as Kekaha in North Kona. We believe that the Supreme Court affirmed what always was, that it did not create questions, but it did articulate them from a different perspective. And so questions that had been manifest for practitioners in impediments to practice, as the land use planning process is currently implemented, were articulated in our favor, if you will.
[00:10:35] Hannah K. Springer: With regard to the regulation that you mentioned earlier, I don't think that there are any bonafide practitioners who would argue for the absence of regulation. What we aspire to is the internalization of values that recognize what it is that causes resources to remain sustainable and to maintain them to the best of our ability. When those values are not internalized and we are not able to be self-regulating, then we recognize that there may be the need for external regulation. In the past, that has been through the inherent relationships between the people and their homeland, and that substantiated with the overlay of the Kapu.
[00:11:30] Hannah K. Springer: Our laws, our ordinances, our constitutional and statutory guarantees, in effect take the place of those Kapu.
[00:11:40] Randall Roth: Okay. And so you have been a member of this study group. Um, you happen to be a trustee of OHA, the office of Hawaiian affairs, but you haven't been wearing that hat, you've been a member of this study group as a a practitioner of these gathering rights. That's correct. And I guess what I'm hearing is that you feel that that there is a responsibility that a lot of people have, but especially, I think I'm hearing you say the practitioners themselves have a responsibility here. We all do.
[00:12:11] Hannah K. Springer: As practitioners, we also have expectations that are held by many citizens, and that's there will be due implementation of constitutional and statutory provisions for us to practice and maintain the healthy and wholesome lifestyle that we have from the Wama of the distant past.
[00:12:31] Randall Roth: So you're not necessarily opposed, and I I'm, I probably have this wrong, but are you opposed to ever having some form of legislation, or are you saying at least for right now, it has to be more an introspective, um, individual responsibility sort of thing?
[00:12:51] Hannah K. Springer: Dan and Walter and I and a few hundred other people sat yesterday through, I left after five hours of testimony before the House Hawaiian Affairs Committee on this matter. And the issue was on proposed legislation that was coming forward from that House Committee, and at this time, I agree with those who say that it is premature. There are a number of statutes and constitutional guarantees that we need to fully explore the implementation of before we add further layers of regulation to the framework within which we work.
[00:13:34] Randall Roth: Okay. Well, let me ask Walter Heen. Um, Walter, I've mentioned this study group, and I know Hannah and Dan as well as you were members of of this study group. Tell me what that's all about and just what the history of this so-called PASH study group is.
[00:13:53] Walter Heen: Well, the study group was gathered by the Office of Planning in response to House resolution number 197 that was passed or adopted by the House of Representatives in the last 1997 session. And the purpose of the group was to study and examine and understand the issues and questions arising from the PASH decision. The members of the group, and I believe there were 19, were selected by OP from persons who dealt with and were interested in the conflict between private property ownership and native Hawaiian traditions and customs. There were representatives of Hawaiian groups, such as Hannah, and Daviana McGregor. And they were activists such as Daviana McGregor.
[00:14:54] Walter Heen: There were representatives of the real estate development community such as Dan, the title companies, and also government planners and people dealing with private, I'm sorry, government lands. And what we the important part of this group, I think, was the process that we established. Process here, I think, is awfully important. You know, political scientists and sociologists these days extol the virtue of community empowerment, and this was a classic study in community empowerment, I think. And it's something that's going to have to be developed and built upon for the future discussions of PASH. What we did was we went in there and dealt with attitude.
[00:15:44] Walter Heen: We took, we all took off our hats. We were not representing the group to whom we might be belong and of which we might be members. But we were there as individuals with a certain perspective, but with the idea that we were going to try to understand the other person's perspective. And try to reach some kind of consensus if we could.
[00:16:08] Walter Heen: And we had several meetings among ourselves, a number of meetings among ourselves, and then took the took our conclusions, our tentative conclusions and options to community meetings, where we were charged upon, uh, and understandably, because we had not had the opportunity to develop an understanding in the community, particularly the Hawaiian community, about what this group was all about. We were viewed as another arm of government which was trying to impose government's will on them. And in midstream, as it were, we changed our course of action and decided we were going to go out and listen to them before we talk about our recommendations.
[00:16:53] Walter Heen: We finally submitted a report, a late, I might add, because of the monstrous nature of the work, uh, to Ed Case's committee this past week. And I might say that Mr. Case, in spite of all of the uh criticism that's been leveled at him, I think has done the community a service. Uh, this resolution is an indication of how I think, my my viewpoint of him from having observed his actions in the past couple of months, I'm convinced that he is interested in establishing dialogue. And if he has to hit us over the head with a two by four, that's the way he thinks it should be done.
[00:17:33] Randall Roth: Okay. Well, it's interesting that Ed Case is at the center of of of what I'll call both of these, uh, developments, because the juxtaposition I think is is interesting. Ed's autonomy bill, uh, at least is is perceived as something that that is devoid of process.
[00:17:50] Randall Roth: That that he individually put it together and then put it out for for general consideration, whereas the study group, uh, as you've described it, is uh laden with process. Uh, what some people may not think of as a big deal, um, simply having the folks agree ahead of time that they're there as individuals not speaking on behalf of an organization I think can have a major impact on how they deal with one another.
[00:18:15] Walter Heen: Let me say that my original impression in entering this group was, it's no big thing, brother. It's going to be the same kind of discussion over and over. Everybody's going to take their positions and nothing's going to happen. But dealing with that attitude to begin with, I think was very important, and something did come out of it.
[00:18:34] Dan Davidson: Yeah, I think it was a fascinating process. The the group developed a lot of energy and they developed it pretty fast. Uh, if anything, we got almost a false sense of uh gee, we got this thing figured out, and then we went out to the public hearings and uh They told you you didn't. We had a very rude awakening and if anything that bonded the group a little bit.
[00:19:00] Randall Roth: because we were kind of all in it together and so had to kind of lick our wounds after the hearings to try to figure out if we'd done anything wrong, or what I think is more accurate is that there was still a very strong public need to express a lot of anger over Senate Bill 8 and also to deal with bigger issues. I mean, we thought we were going to go out and talk about Pash as a discrete issue. People wanted to talk about sovereignty. They wanted to talk about anything they wanted to talk about.
[00:19:37] Randall Roth: So maybe where Ed Case is today on the autonomy bill is kind of where the the Pash study group was at that point in time when it had its collective head handed to it, and it determined that it it had to shift gears and approach things maybe a little bit differently?
[00:19:53] Hannah K. Springer: I would say it's a it's a question of scale. The Pash or Kona Ke study group had a particular singular focus and then became, oh, subject to a confluence of conditions out in the communities. The Autonomy Act paints such a broad brush that it only magnifies what occurred with the Kona Ke Study Group and the public hearings.
[00:20:24] Randall Roth: Okay. Hannah, would you agree with what I I think I'm hearing from Walter and Dan, and that is a sense among the study group members that you did make some headway, that you did accomplish something? Is is that what you're feeling right now?
[00:20:41] Hannah K. Springer: Absolutely. The the study group, in effect, was a group of people that came together and in the way you mentioned the word Ahupua'a, in the way that in our homeland divisions from the shoreline up to the mountaintops and including the clouds that hover over them, there's a diversity and and and an integration of those diverse components. And that's what came together in the study group from the bankers, to the lawyers, to the practitioners, to the bureaucrats. We were all able to sit and after the additional adjust after the initial adjustments to attitude, I believe that a very deep and sincere sense of shared camaraderie, of Aloha, if you will, prevailed and informed and guided all of our discussions, and I think don't you, Walter and Dan, that that was clear in the testimonies of all of the study group participants yesterday.
[00:21:41] Randall Roth: Walter and Dan are both nodding in total agreement with that statement, Hannah.
[00:21:46] Hannah K. Springer: It was a good exercise. I think that and Chairman Case made reference to this also. Every opportunity that we have to develop rapport among the different individuals and components of our communities, lead us progressively to a more wholesome condition, and when we talk about practice and our relationship with each other and the land, that is what we're talking about, that wholesome integration.
[00:22:13] Randall Roth: Okay. Well, in case somebody joined us late, you're listening to the Price of Paradise radio show. My name is Randy Roth. Our topic today has to do with the Pash case, and I guess that's related to just understanding where we are now, so far as the regulation of native gathering rights is concerned. But also our topic today has to do with how a community deals with a controversial issue where there seem to be strong feelings on what appear to be opposite sides of an issue, and in this case, we have a group called the Pash Study Group, which, at least every member that I've talked to has been quite proud of of what they feel they've accomplished. They feel that there's something about the process that worked and that it it could be a model for something. And so our our discussion today also talks about the Pash Study Group as perhaps a a model for community dealing with controversial issues. With me to discuss it are Hannah Springer, who is a a practitioner of gathering rights. She happens to be a an OHA trustee, but she's not here in that capacity, she's a practitioner of of native gathering rights. Dan Davidson, who is the executive director of the Land Use Foundation of Hawaii, sometimes referred to as Lurf, but again, as part of the study group, Dan was there speaking for himself and and wasn't tied into the positions of the organization. And then Walter Heen, who is a retired judge, and Walter I struggled with, uh, what to call you generally, whether it's a civic entrepreneur or a community activist, I came up with all sorts of nifty titles.
[00:23:48] Walter Heen: I've been called a lot of things, Randy.
[00:23:50] Randall Roth: Walter is one of these guys that can't seem to say no and he's asked to serve on a board or a commission or a task force or what have you. When I want to know what's going on in the community, I I give Walter a call because chances are he's at the middle of it. If you would like to ask a question or make a comment, please call us at 955-8821. We have all of our lines open right now and our number is 955-8821. Or if you're on a neighbor island, the number is 1-800-955-8821. Again, we're talking about the regulation of native gathering rights or or how does the community deal with the controversial issues such as the Pash case. Um 955-8821. Walter, I think you had a comment to make.
[00:24:37] Walter Heen: Uh yeah. Um I think the having said all of this, the problem still remains out there, and this was raised by Representative Case yesterday at his hearing. Um Well, we the Pash Study Group has done all of this. So what? What are we going to do with this? Um the the group is firmly of the belief that education lies at the basis of the next move, at the base of the next move. There has to be a widespread community involvement in educating everybody, from from the youngest child to the largest landowner on the fact that native Hawaiian customs and traditions are required to be preserved and protected. And then how do you go about doing that? Once you have an understanding, and also an understanding of those rights and traditions and customs themselves, once you have that understanding, I think it's so much easier for the community to begin to come together, I think, as going to be to resolve these questions in the long run.
[00:25:47] Randall Roth: I happened to be at a talk that you gave a few months ago, Walter, to a group from the development community. And I vaguely recall that you you started by basically saying, Pash is the law, get over it, you know, accept that, and then we can have an intelligent conversation about just where we are. Hannah, I think you wanted to add something?
[00:26:06] Hannah K. Springer: Yes, I did. You know, it it intrigues me as someone who comes from the part of the world that Koanaiki is in, they come to O'ahu and I'm engage I engage in these incisive and spirited debates on it, but I think it's instructive if we look to what is occurring on the land, at the parcel in particular that was the subject of this case. The Protec Koanaiki Ohana and Nanse Hawaii have developed a cooperative relationship with regard to some commonly held goals and objectives. And if we look back to the wholesomeness of our community, we can see that these two opponents in this case are working together to provide for sanitation and refuse pick up and maintenance of sound health conditions at Konaiki Beach, and the Protec Koanaiki Ohana regularly stages beach cleanup days, surf contests for young and old alike, all of which are done with the cooperation of the landowners. So, while far away from Koanaiki, this is causing perhaps debate and polarization, at Koanaiki, the opponents are coming together cooperatively, because we share a common geographic base and are members of the same community.
[00:27:37] Randall Roth: That's fascinating. Dan Davidson.
[00:27:39] Dan Davidson: Well, there's there's one other, at least one other piece of good news that that I'm aware of on this. Uh, members of the business community, uh, Hawaii Business Roundtable, Lurf, the realtors, the bankers, uh, have had a couple of meetings very recently with members of Ilio Uluo O'kalani, the powerful cultural group that came together last session in opposition to Senate Bill 8, to try to work together on these issues, to try to understand better where everybody's coming from. It's kind of another informal, uh, study group approach. And I think both of these groups are committed to meeting, for example, every two weeks during the legislative session to mutually review legislation if it's out there or whatever, and just to keep working on this because, as as Walter indicated, there's still an urgency to deal with Pash issues and Pash problems. And we can't uh, we can't get out of that uh, just by making friends, although that's step one. Uh, step two is is still going to be trying to get to some substantive resolution.
[00:28:44] Randall Roth: And what you referred to as Senate Bill 8 last year, that's what's been perceived by many in the Hawaiian community as an attempt to to legislate away gathering rights. And I and I know that wasn't the that's not the way you would describe what the goal of that was, but that's how it was perceived, Dan?
[00:34:19] Randall Roth: that that way and it was it was very important to landowners and developers last April to make sure that that perception could be eliminated as fast as possible. So, so the development community, you would say, has very much uh, accepted what Walter Heen has has said, which is to just accept Pash as the law, don't don't try to to take away gathering rights, figure out a way to live with them?
[00:34:47] Dan Davidson: I think the the business development community has uh, definitely said we all have to live with Pash. I think it is important to note that there's still an urgency and several business organizations, not Lurf, uh, not some of the others I've mentioned, but some other groups did testify in support of Ed Case's uh bill yesterday, and if I had to make a rough uh, split, I would say that certain groups that may represent small business, if you will, may be feeling even a greater sense of urgency that they can't afford to wait. They're they're worried about if you've got one piece of land and it's three acres, uh, that obviously may put you in a different situation than Campbell Estate. Uh, so there's still a real tension on on how to resolve this.
[00:35:44] Randall Roth: And again, the big concern from from the community that you're very much a part of and a spokesman of is is, in one word, it's uncertainty.
[00:35:51] Dan Davidson: Absolutely.
[00:35:52] Randall Roth: Your goal is to get pinned down. Just what are we talking, what are these Pash rights, who has them, etc.?
[00:35:56] Dan Davidson: Yes.
[00:35:57] Randall Roth: Okay. Well, a question for for all of my guests, and and again, we've got some open lines. So if anyone would like to get into this conversation, the number is 955-8821. Or from a neighbor island, 1-800-955-8821. The question I have for everyone, and and Hannah, we'll we'll start with you if that's okay, why should people who aren't or at least don't perceive themselves as being directly affected by all of this, why should they care? If if someone isn't uh a gathering rights practitioner and and maybe doesn't even have a sense for for what all that involves and they don't own any land that they think would ever be subject to to somebody's right to gather on that land, why should those folks even care about all of this?
[00:36:44] Hannah K. Springer: Simple answer, because they live in Hawaii, and these things are Hawaii. Moli know, truly of of Hawaii. They have been the practice of the people here for hundreds of years, hundreds of years before the coming of Captain Cook, and in the decades and centuries that have followed. But again, if if we can look to Konaki, the place of this case, we see that the support for the effort by Public Access Shoreline Hawaii, the Ohana Pi, the Ohana Pilago, did not come only from people with the Coco, the blood, they did not come from only those who go to the Waiopi, the Angeline ponds, to collect the fit uh the shrimp, they came from the community, small business and non-profit groups alike, who understand that this is tied intimately with the well-being of our community here in Kona. And we've described earlier how Nanse and the Protect Konaki Ohana are working in some areas in partnership, the children of our community, the students of Kealakehe intermediate
[00:38:00] Hannah K. Springer: at school, for example, some who are of the blood, some who are not, come to regularly to do service projects, cleaning trails, learning the lessons of geology, biology, hydrology, that are particular to this part of our world, but maybe applied other places once you have that understanding of those inter relationships and interdependencies of which were speaking. So while it may be particular to the Pohahawaii and this place, we can extrapolate lessons that are global in context.
[00:38:36] Caller: You know, and I was just thinking as I was listening to you, Hannah, that that maybe for people like me, it would be better if instead of focusing on a term like gathering rights, which makes it sound as though the Hawaiians are simply taking, that that maybe we ought to describe what's going on here using the word responsibility as part of that because what I'm hearing you say is that there's at least as much giving as there is taking.
[00:38:58] Hannah K. Springer: Absolutely, I think a a very useful word would be reciprocity.
[00:39:04] Caller: Well, I'm going to ask the same question in terms of of why people like me should care about all of this of Dan and Walter in just a moment. Well we have someone on the line, so let's go to Maelani in Kaneohe. Good morning, Maelani. Good morning. Uh I think that I would extend on what you just discussed. Uh the word probably better used is stewardship, and that is the foundation of a lot of the Hawaiian cultural value and their attachment to the land and the resources. Okay. Okay, what I wanted to ask was, how does this collaborative effort and PASH affect the efforts to protect Native Hawaiian sites, burial grounds, sacred places?
[00:39:40] Caller: Let's have Walter Heen field that one.
[00:39:41] Walter Heen: The same kind of process can be used in my view, um, and perhaps is being used now, you might say, with respect to the uh burial council, which is doing virtually the same thing. When a burial site is found or uncovered in a development, the burial council comes in immediately and immediately mediates between the property owner and the native Hawaiian community. And that kind of thing can be used elsewhere, um, and I think it can be very successful.
[00:40:16] Caller: Uh not exactly but it it was I understood where Burial Council fits into this, but I understand there's a new collaborative effort for all the different entities to try to work out mechanisms to avoid conflict in the future. And my concern is that um, especially in the island of Oahu, there aren't enough there isn't enough recognition and identification of important historic sites and there's really not enough of a process to protect them or to recognize them as having value. And the State Historic Preservation office seems to be overwhelmed not enough staff and so we we really need to look at another way to to do this. Okay. Maelani, thank you for your call this morning.
[00:40:55] Caller: The question that I'd asked earlier and that Hannah had respond to, Dan Davidson, why should listeners care about what we're talking about today?
[00:41:06] Dan Davidson: Well, I think from the the business perspective, we have to be very concerned if real estate transactions are in fact more severely impacted by uncertainties about title issues. Again, uh, we're in a slowdown, not too many transactions. Nobody that I know of wants that to continue indefinitely. So the question would become when and if we're ready to sort of take off again, if Pash uncertainties on top of our other uh business problems if you will, just sort of compound each other with the result being uh higher prices uh and just more difficulties for business uh in general including uh investors.
[00:41:59] Dan Davidson: And actually, that's quite important because some of the language, again the dicta, if you will, in the uh in the past decision sort of saying western ideas of property rights uh don't universally apply. I think for those of us here spending enough time on it, we can kind of understand it. How that's going to play on the US mainland where our money comes from or other countries is a whole different matter.
[00:42:31] Caller: All they hear is that the rules are different in Hawaii and yet the rules aren't yet on top of the table. Correct. Okay, Walter Heen, why uh why should people care about this?
[00:42:42] Walter Heen: Well, first of all let me talk about the rules you just mentioned. Yes, the rules are different and this is why we in the PASH study group realize and conclude that education is so important here. If you get into the actual operation of these traditional and customary practices as they impact on uh title considerations it might not be such a bad thing. But property owners, particularly new ones coming in, have to understand this.
[00:43:12] Walter Heen: But my uh my view of this is that if we don't take steps to preserve and protect the native Hawaiian cultural heritage, you could saw off the anchor that holds these islands out here, move them 2000 miles across the sea, anchor them outside of the state of California next to Los Angeles and you'd have another American community. That is not what keeps you here, it's not what keeps Dan here, it's not what keeps everybody else here. If this is a special place then everybody has the obligation to protect what is special about it and that is the Hawaiian culture.
[00:43:50] Caller: Okay. Well, let's go to another caller. Uh and we've got some open lines. The numbers 955-8821. But we go to Michael from Manoa. Good morning, Michael. Good morning. Aloha. Hi, Aloha. Aloha. I have two questions that um really relate to what could be rational extensions of Pash, and I'd like to put them to the uh panelist today and see if we can discuss them a little further. These questions of course have been raised in sovereignty and independence issues as well. The first one really is uh, um, why would this uh these rights be limited to Native Hawaiians and if that can be done, um then what is a Native Hawaiian the same old question.
[00:44:31] Caller: Michael, let me get a response to that and then I'll come back to you.
[00:44:37] Hannah K. Springer: Hannah, any any comments on that? Yes, as was discussed yesterday and I think Victoria Holt Ka Kumula, and um Poh for articulated it well when she indicated that she teaches the things of Hawaii, not mere Hawaii to people who are not of the koko. My Kane, my husband is not of the koko. Our children are. Most assuredly when we go to gather the salts of Kalaimano, and tend the Kaila of Hikuhia, he is an integral part of our family's practice. So practice is extended because we are a composite of the people that have come here.
[00:45:24] Caller: Okay. And not just because he's part of of a family that includes Hawaiians, but anyone who chooses Hawaii as their home, potentially can be somehow a beneficiary of what PASH is all about?
[00:45:38] Hannah K. Springer: That's really the heart of my question, if we study the the the ways of the uh and and really make an effort to learn the the the key to this, the language and interact with the land as if it were our own Aina. Uh why not? Why shouldn't those of us who are perhaps Irish, uh have these same rights if we practice them within the normal use and traditional uh customary methods.
[00:46:05] Hannah K. Springer: May I say that there are some things that are particular for those of the blood and those may be the things of religion. So when we're looking at an access to an area, there may be a variety of reasons for which we would be going and some of these things, for example, within the practices of the Christian denominations, there may be some rights or places that are accessible only to those who are initiates to that particular denomination.
[00:46:40] Walter Heen: There are some Halau who do according to the teachings of their school make demarcations according to whether or not there is the blood.
[00:47:04] Caller: Michael and and Hannah, I want to get Dan Davidson's thoughts and then Michael I want to come back to you on this issue before we move to your next issue. Dan Davidson?
[00:47:12] Dan Davidson: I actually think this is one of the really critical issues uh for the business community and really for anybody which is part of the uncertainties, who can assert the rights? Uh I was very impressed with the way the study group addressed this question and uh it's it's in the option section of the study group report, there's language on who can assert claims and the language came generally from the native Hawaiian people on the study group. It didn't come from business and it's fairly tough in that it reflects the responsibility side, the stewardship aspects.
[00:48:04] Dan Davidson: It brings Ahapua'a tendency back in when it's appropriate. Uh Hannah can maybe speak to this better than I can, but it's not an open-ended anybody can do anything they want and all they have to say is I think like a Hawaiian and I act like a Hawaiian. There's a real strong commitment to particular land and I think it's a step forward.
[00:48:21] Caller: So there's a bright line, but the bright line isn't really the blood, it's related to some form of commitment.
[00:48:28] Dan Davidson: Well, there's also though a notion because I think some of these constitutional rights are clearly uh granted to Native Hawaiians, they're not granted to anybody else. So I know I think that there still are issues of why don't why don't you read the language.
[00:48:46] Caller: Let's uh, you want me to read the whole language? Sure. Read it quickly and then we'll go back to Michael.
[00:48:51] Dan Davidson: Okay. Uh, land use planning decision makers should use the following guideline in determining who is entitled to assert claims to protect access to and the right to use natural and cultural resources necessary to continue their practices. One, Ahapua'a tenants, who are descendants of native Hawaiians, regardless of blood quantum, who may establish a relationship with and may accept a stewardship responsibility for resources on lands in their Ahapua'a. Or two, the following persons who have established a historic relationship with and have demonstrated a stewardship responsibility for resources on lands in the particular Ahapua'a in question, and this includes three categories, descendants of native Hawaiians regardless of blood quantum, descendants of the citizens of the Kingdom of Hawaii, or members of a native Hawaiian Ohana or Halau.
[00:49:51] Caller: Okay. Um, Michael, you started this, why don't you say a few more things about the issue, the first issue you've raised and then we'll go to another one. Oh, I think that's a reasonable coverage of it. Uh, we could all be considered members of the uh native Ohana or Halau.
[00:50:07] Walter Heen: Like Lucky Luck says, the Hawaiian and the Hawaiian at heart.
[00:50:10] Caller: Yes. Without declaration that one doesn't know whether one's considered that by the native community, but you get the feeling, you know when the Alaha is there. And I think that covers it quite well and I assume that in the future, they they will be permitted to make such claims where necessary and be supported by the Hawaiians.
[00:50:26] Caller: The second question uh is another similar one and that is what about traditional and customary uses that have not been uh exercised continuously at a particular site, but may have been rediscovered through historical research and study or by uh hearing uh of the old people uses of these and uh wish to be reestablished by native Hawaiians or or members of the Ohana.
[00:50:53] Caller: Okay so in point, I'm a I'm a member and have lived for almost 30 years in the Apuaha of Waikiki, which includes Mono Valley, and we also include Ka Mo'o Iliili, the section of land uh between here, between Manoa and Waikiki, which is now more known as Mo'iliili, but it's really Ka Mo'o Iliili. Underneath that area, there is a very large cave, a water cave. It's filled with the sacred waters of Wahila Ridge and uh Kanivai where the Hawaiian Study Center is, they don't even know, I don't think that they're built on top of it. Very sacred water.
[00:51:28] Caller: And these waters were used throughout history and there are many mentions of them in historical record as healing and to provide a sense of grace and other sacred uses. Ka Hu used them, many of the old Mo'i from Kona Hawaii uh what is now called Honolulu, uh used these waters and and there's a famous uh pond, Ka Pakea, right at Houston Street. Mr. Houston found it and uh later years it was filled in and covered.
[00:51:54] Caller: We know the entrance that, but I don't think there's a continuous use of that pond and the sacred fish that occur in there over these last 200 years, but it's been rediscovered. We know about it, we're interested in having it protected and preserved. How would Pash be of assistance in that? This is not fully undeveloped land, but there are some parcels which are undeveloped which have potential entrances to that cave. Can we utilize?
[00:52:18] Caller: Michael, let's let's ask our uh our former jurist, our retired judge, Walter Heen. Pash might or might not be able to resolve that problem uh for this reason. Pash clearly said that in the face of arguable abandonment, you can re-establishing traditional and customary practices on property.
[00:52:31] Walter Heen: And therefore, you would expect to be able to argue in this instance that this had been done in the past. My ancestors, I have this connection with the Ahu Pua'a, which would allow me to reestablish my traditional and customary ancient uh gathering practices. On the other hand, you have the problem that this is clearly in my mind anyway, developed property, and therefore the Supreme Court again would say that in the authority of the government to regulate, that perhaps this would be developed property and therefore the practice could not be reestablished.
[00:53:25] Caller: Okay. Michael, I appreciate uh your call this morning. We we do have to to move on. Uh thank you. Mahalo nui, Aloha Ola Waida. We are we are down to about 9 minutes or so. We've got another caller who's been waiting patiently. Let's go to Jerry from Mielani. Yeah, I'd like to uh make a broad uh statement about uh you know the issues. Um, it seems to me that so much energy and effort has been going to Hawaiian issues and right now the whole economy is like sinking. People don't have jobs, the the jobs are not being created.
[00:54:01] Caller: Uh to me, you know all this attention on burial rights and all of this stuff has nothing to do with, you know, what's really important right now, which is getting people back to work and putting food in people's mouths and housing them. Jerry, hang on. I'm going to I'm going to come back to you. Uh Walter Heen happens to be not just on the PASH uh study group and not just happens to be the judge who decided the PASH at the lower court level at the Intermediate Court of Appeals level, but Walter also you're on the uh Governor's task force for economic revitalization.
[00:54:36] Caller: What do you think about as you listen to somebody like Jerry say the big issue, the elephant on the table if you will, is the economy and this PASH stuff is just on the periphery of that?
[00:54:50] Walter Heen: Um, you know, while he was asking his question, the third, the word occurred to me, stability. In the international scene, the United States emphasis is always on stability in areas where there are developing nations particularly, stability of government, stability of economic desires and ambitions. And I think that if we can establish stability with respect to native Hawaiian customs and traditions, native Hawaiian rights, we would be able to concentrate on the total picture including uh economic development, but unless we create stability, that's not going to work.
[00:55:35] Dan Davidson: Well I think the I agree with the caller that that economic issues are incredibly important right now. I think what we have to try to work to is where these aren't seen as mutually exclusive. You work as hard as you can on the economy, you also work as hard as you can to resolve this issue. I don't think they're mutually exclusive and I certainly hope they don't become that way. Are they are they closely related or are they separate but important nonetheless issues?
[00:56:04] Walter Heen: Well, the the tension for business is that uh solutions if you will, or or responses to PASH have to be very careful that they don't become more regulation, more red tape, more impediments to good land development type decisions and that's a very real issue. Uh we talked in the study group of of not only maybe doing a better job of of dealing with PASH in the planning process, but also being efficient and streamlined at the same time. Now I'm not sure that got in the options. I got to be careful, but the two uh uh the two are connected.
[00:56:45] Caller: Hannah, do you have anything you'd like to say to Jerry before I go back to him?
[00:56:49] Hannah K. Springer: Yes I do. With regard to the wholesomeness of our communities, I would agree with both Walter and Dan that these should not be mutually exclusive but complementary components of the whole that we are looking at. And when we have the opportunities to express our our religion, our particular um practices of recreation, then we are a more wholesome people and may work harder. Now, with regard to putting food on the table, I understand from the testimonies yesterday that there are some communities in the rural parts of this archipelago, where a a quarter or more of the food that comes to the table is from hunting and gathering activities.
[00:57:37] Hannah K. Springer: So it is a very real component of the well-being of families in the more rural areas.
[00:57:43] Randall Roth: Okay. Well, we lost uh Jerry on the line and so we'll moved our last caller. I think it'll be the last one. We're we're running short of time. We go to Rick on the windward side. Good morning, Rick.
[00:57:53] Caller: Yeah, good morning. Um, this is interesting. Um, I think that what seems to be happening is this, we're going to be making a transition from the old mindset of never-ending growth, because what people are coming to realize is that this not working. And so, we have to make a transition to more sound environmental practices that take into account our resources, and that we don't continue on the cut-your-own-branch syndrome.
[00:58:23] Caller: Now Dan is talking about, you know, the economic community is bummed because it's slow, and they want it to take off again. But do they want it to take off in the same old mindset, which, you know, is like the gold rush mentality. About growth economics is not sustainable in its present form, and so many people are already seeing that already. Now, case in point O'ahu. If can Dan, can your mindset continue on for the next 500 years?
[00:58:54] Randall Roth: That's a quick answer because we're getting into sustainability here, which is related to Pash, but it's it's a little bit
[00:59:00] Caller: It's it's the same issue.
[00:59:02] Randall Roth: Actually, I I disagree with most of your premises, so I don't know how to answer your question.
[00:59:06] Caller: Well, it's called growth economics and how much can you jam into this little island?
[00:59:10] Randall Roth: I'll tell you what, Rick, you've you've made your point um uh quite well. And we're down to 3 and 1/2 minutes, and so I'm going to give each of our guests about uh one of those 3 and 1/2 minutes. Uh, Hannah?
[00:59:24] Hannah K. Springer: Hannah Springer, can you hear me?
[00:59:26] Randall Roth: Yes I can. Uh, in case anybody just tuned in quite recently, you're listening to The Price of Paradise radio show. My name's Randy Roth, and we're talking about the regulation of native gathering rights. And we've got Dan Davidson and Walter Heen in the studio. Dan is a spokesperson for the development community in Hawaii, and Walter is a a retired judge. And with us by phone from the Big Island is Hannah Springer, who happens to be an OHA trustee, but she's not with us this morning in that capacity. She is a a practitioner of uh native gathering rights. Hannah, you've got a minute or so to share any closing thoughts.
[01:00:02] Hannah K. Springer: Yes, thank you. We of the the Puna Hawai'i also desire predictability in our lives. And the contested cases such as are exemplified by the Kohanaiki decision and the Public Access Shoreline Hawaii case are expensive for us as well in terms of time away from work and our families in order to engage in them.
[01:00:26] Hannah K. Springer: Yesterday the House Hawaiian Affairs Committee also heard a bill relating to cultural impact statements, and at least with regards to lands that are still subject to the planning process and discretionary permits issued through that process, the cultural impact statement effort and initiative may be part of the solutions that we'll look to to increase not only the predictability, but the stability, Ika pai aina apau across the archipelago. Mahalo no ya oku, Aloha.
[01:00:59] Randall Roth: Thank you very much, Hannah. We go to Dan Davidson. Dan, you've got about a minute.
[01:01:04] Dan Davidson: Well, the the headline I submitted to the to the advertiser this this for the article this morning was maybe not as catchy journalism. It was Pash study group a good beginning. That got converted into collaborate, don't legislate. Uh, and I think that that may miss the point a little bit. I think that the again, collaboration on legislation is one of the possible down the line futures. I'm not going to prejudge it, I'm not sure.
[01:01:35] Dan Davidson: But there is a very strong sense of urgency in the business community that we deal with the uncertainties created by Pash. What we said last April and May is still absolutely true, and I think it's underway that it's important for the groups to work together, to understand each other. I've learned a lot by being part of the study group, uh find out where there's not a problem, which I think is an expanding area, rather than than a than a growing area. Work with where we agree and then try to come up with a whole variety of uh Pash related solutions. And I'm excited and encouraged.
[01:02:17] Randall Roth: Walter, you've got about 40 seconds.
[01:02:19] Walter Heen: Okay. Well, I can use 40 seconds. Um, the headline I submitted was Pash the aftermath of Pash, can we all get along? And I think we can if a concerted effort and a good faith effort is made by everybody. And I said at the end of my article, try it. You might like it. Try it. You might like it. There you go.
[01:02:38] Randall Roth: Folks, you've been listening to The Price of Paradise radio show. We've talked about the regulation of native gathering rights and especially the work of the Pash study group. Our guests were Hannah Springer, Dan Davidson, and Walter Heen. If you tuned in late and you'd like to hear the show in its entirety, tune tonight to KIFO. That's 1380 AM beginning at 8:00 o'clock. The entire show will be replayed. Uh, next week, we've got an interesting show for you. It has to do with the controversy out at uh UH on should Porteus Hall be renamed? And why do we name streets and airports after people? You've been listening to Pop Radio. I'm Randy Roth. Aloha.