Can Land Development Coexist with Native Hawaiian Rights?
Price of Paradise · Hawaii Public Radio · aired 1996-09-08
Guests: Kenneth Kupchak (partner, Damon Key Bocken Leong Kupchak; constitutional law specialist); Dana Naone Hall (Chair, Maui/Lana'i Island Burial Council); Isaac Hall (attorney); Peter L'Orange (Executive Director, Hawaii Leeward Planning Conference)
Duration: 0:30:05 (recording incomplete — ends mid-show)

[00:00:00] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise radio show. All of us who worked to bring this show to you each week is a volunteer who believes in the importance of lively and informed public conversations. Our sponsor, the Hawaii Community Foundation, is an organization that encourages grassroots efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion. It was one year ago that the Hawaii Supreme Court issued its decision in a case known as PASH. PASH is an acronym for Public Access Shoreline Hawaii, the name of the group that originally brought the case to court. Basically, the PASH decision affirmed the right of native Hawaiians to go on to the private property of others for quote traditional and customary Hawaiian practices close quote.

[00:00:46] Randall Roth: There's an old saying that the Supreme Court isn't last because it's always right, but that it's always right because it's last. In other words, even the people who argued against the expansion of these rights now accept PASH as the law in Hawaii. Their focus these days is on its implications. In an article in this morning's Advertiser, Attorney Ken Kupchak says the case has developers here and investors elsewhere shaking their heads in disbelief. He also says quote, if our elected officials don't get to work on this problem very soon, outside investment will diminish or even dry up completely and every resident of Hawaii eventually will feel the consequences. He also suggests that PASH has substantial consequences to homeowners. We'll hear from Ken in a few minutes, but first I want to introduce our guests in the studio.

[00:01:33] Randall Roth: Dana Naone Hall is the chair of the Maui Lanai Islands Burial Council, has been actively involved in the protection of Hawaiian cultural and historic sites on Maui for many years and is the author of an article in the paper this morning. Good morning, Dana. Also with her is Isaac Hall and I must confess I talk to a number of lawyers on the PASH side of this controversy about the possibility that they would join us and eventually, I heard several of them say, well, you dummy. They didn't use this word, but what I heard was, well, you dummy, don't you realize that Dana's husband is the preeminent authority on this? Isaac Hall is an attorney in private practice in Wailuku, Maui for 18 years, has represented native Hawaiians and community organizations in the development review process and Isaac, I'm slow to catch on, but it's nice to have the preeminent authority here.

[00:02:26] Isaac Hall: Thank you very much. I'm happy to stand in for the attorneys from the Native Hawaiian Legal Corporation.

[00:02:30] Randall Roth: Well, they had very nice things to say about your work, Isaac. Also in the studio is Peter Larange, who is the executive director of the Hawaii Leeward Planning Conference. He's held that position for about 20 years. Also, he's been a high school football coach and manager of the McCanlist Ranch. Good morning, Pete.

[00:02:47] Peter L'Orange: Good morning, Randy.

[00:02:48] Randall Roth: And with us by phone is Ken Kupchak, I mentioned earlier that Ken wrote a piece in this morning's Advertiser. He's a partner in the Honolulu law firm of Damon Key Bocken Leong Kupchak. His practice centers on all aspects of construction law. Well, in my introduction, I said a few things about the piece in the paper this morning by Ken Kupchak. I think we'll ask Ken by phone just to tell us a little bit more about what he considers the main theme of that piece and then we're going to hear from our guests in the studio. Ken, are you there?

[00:03:19] Kenneth Kupchak: Aloha. Good morning.

[00:03:21] Randall Roth: What what do you think was the main theme or the main themes in your piece this morning that you hope people understand?

[00:03:30] Kenneth Kupchak: The real problem I think is the lack of certainty that has now evolved in the property rights as a result of the recent decisions. The concept of gathering rights has been around since the Great Mahele, and it's not generally disputed. The problems have really developed when our courts on very little evidence decided to go beyond two concepts of certainty in the prior law. One of those was to limited to native rights that were listed in the statute, and secondly, to limited to individuals who lived in an ahupua'a. The concept of certainty is important for trade, and in order to participate in world trade, you can't give something up one day and then ask for it back the next day or people have stopped trading with you.

[00:04:18] Randall Roth: So in your piece this morning where you say it has outside investors shaking their heads in disbelief, you're concerned that they're just not going to want to risk their capital here where our notion of of fee simple ownership is just different than elsewhere.

[00:04:33] Kenneth Kupchak: It's not uh we don't know if it's different. We don't know what it is anymore.

[00:04:37] Randall Roth: So it's really the uncertainty that you think is the biggest problem as compared to the the reservation of of native use rights.

[00:04:45] Kenneth Kupchak: That's correct. If you had a bank and you wanted to invest in California versus Hawaii, you would invest where you knew the principals were locked down.

[00:04:53] Randall Roth: So at at at the end of your piece this morning, you're calling on the legislature to address this not to get rid of these rights, but just to get more specific about who holds them and exactly what they are.

[00:05:06] Kenneth Kupchak: That's correct and I think it's very difficult under the existing law, or the existing case where they left this to any agency issuing a permit to try to determine what essentially heretofore were property rights, which is in the domain of the courts or the legislature. Now we've asked all sorts of people and we will get into a chaotic situation because they have no guidance, no training and no certainty principles among them.

[00:05:32] Randall Roth: It sounds to me as though you believe at least that that if something isn't done to add some certainty in this area, that that development is going to to just stop.

[00:05:42] Kenneth Kupchak: I know that I wouldn't invest under these circumstances.

[00:05:45] Randall Roth: Okay. Well, Ken, thank you. Stay on the line. We'll come back to you later in the show. Pete Larange, what do you think? Are you in basic agreement or disagreement with what you're hearing from Ken Kupchak?

[00:05:54] Peter L'Orange: Oh, I agree totally with Ken. I'm I'm the only person I guess in this room that's not an attorney. So I got to speak from a lay person's, uh, standpoint, but the decision needs to be clarified. It's not a decision whether they have rights or don't have rights, it's who has them and where. And the legislature needs to do something about that. I sit on several boards where this PASH case has been brought up as a reason for the boards to do things, and the attorneys that bring these arguments make it very difficult for laypeople, just as Ken was explaining. Very serious problem.

[00:06:28] Randall Roth: Okay. Uh, Isaac Hall, you are an attorney. Dana is not, but uh, Isaac Hall, you're the attorney member of of this husband-wife team. What's your reaction to what you're hearing from Ken and from Peter?

[00:06:41] Isaac Hall: Um, I think the PASH decision itself has been well researched and well thought out and uh, that what it basically does is to reaffirm rights which have existed at least since the time of the Mahele and perhaps before then, and it's clarified certain aspects of our land tenure system, but it has done nothing of the sort that Ken has alleged that it does. I I think Ken's statement in the paper is exaggerated and inaccurate and doesn't reflect what the PASH decision does and doesn't do. For example, Ken claims that that fee simple land ownership in Hawaii no longer exists. That's not what PASH says. PASH essentially says that the traditional and customary rights were never um part of the fee simple ownership that got extended to private ownership.

[00:07:31] Isaac Hall: Ken also suggests that uh there's no other place in the world that has anything similar to this. That's entirely inaccurate because in any other state in the United States where there are native Americans residing, there are similar similar situations to this and I might just add um that the United States versus Washington in the state of Washington is is very similar where native Americans had off reservation treaty rights to fish on off the reservation uh in traditional and customary places and it's that sort of situation that's been decided there [unintelligible — audio glitch] those rights exist, the title is subject to them, and we can find examples of that everywhere to help guide us and so there is certainty and I can get into this later if you wish.

[00:08:18] Randall Roth: I I'm real curious, Isaac, what do you think the the implications are? In other words, do you think as a practical matter, this PASH case really isn't going to make a big difference or it's going to make a big difference but we have certainty in terms of of how the case is going to be implemented?

[00:08:36] Isaac Hall: Well, as far as the certainty argument goes, the as far as the law goes itself, if you read the PASH decision, cases are relied upon from the first volume of Hawaii reports onwards about the existence of these rights. We've had a series of cases that have dealt with this extensively, the Kalipi case, the Rapoon case, the Pelly case and now PASH. Um, if we can't really be entirely uh unsure about what traditional and customary rights are because we watch them being practiced every day. We watch people throwing net uh along the coastline, we watch Halau going up into the mountains to uh collect uh necessary things, we watch people collecting medicinal plants. We we see all these things and these are part of the fabric of of this culture, so I don't think there's uh that much uncertainty or anymore uncertainty than than we can tolerate.

[00:09:29] Isaac Hall: Um, I don't think that Ken should be scaring homeowners, though. I don't think that's an appropriate thing to be doing at this point um because um Kulianas were privately owned and and and and Hawaiians had their own house lots, they could grow uh their own gardens on those house lots and other people just could not come in, it was not a tradition or a custom to come in and uh pick Plumaria or mangoes. So that's I I don't I think we should leave homeowners out of this and homeowners should feel secure that uh they are not going to have native Hawaiians coming in and picking mangoes and Plumaria.

[00:10:05] Randall Roth: Okay. You mentioned that that this is just one of a series of cases, but there is something different about this case. Uh, I talked to the head of one of our title insurance companies here in Hawaii, for example, and he said as a result of PASH, the underwriting companies on the mainland that that have to be satisfied simply aren't issuing title insurance policies unless there's an exception made for PASH. And according to this head of a title insurance company, he knows of no local lenders, no local lenders that are making any loans to developers unless they've got title insurance without that PASH exception. And so there is something different about PASH as compared to the other cases that you mentioned, isn't there?

[00:10:43] Isaac Hall: Well, I think if if the scare tactics of of Ken go on, that that's true. But the the difference with PASH, it reaffirms the traditional and customary rights, but there are statements and I think well researched in there that really go to land tenure issues in Hawaii, which indicate that uh um the traditional and customary rights uh were never part of the bundle of sticks that were awarded. So private property owners now Well, actually, let me step back. This whole thing uh debate uh was created, let's say in the Kalipi case. In the Kalipi case, which was one of the last opinions of of the uh Richardson Court, um there was a question about whether traditional and customary rights were superseded by our modern land tenure system.

[00:11:30] Isaac Hall: That was left open. In the PASH case, that is decided. The PASH uh court decided that uh traditional and customary rights were not superseded by our modern system of land tenure and and that private titles are subject to traditional and customary rights.

[00:11:46] Randall Roth: Okay. Okay, so it started changing back with the Richardson Court, but PASH was kind of the the lid on it if you will. As as far as making it clear that they were exclude the traditional customary rights were excluded from uh land titles, yeah. Okay, and Dana, I'm going to come to you in just one minute, but Peter's over here anxious to add a word to what uh Isaac was just saying.

[00:12:06] Peter L'Orange: Yeah, Isaac was talking about the legal lese of this. Let me let me give you a practical example of how the Pelly Defense fund case almost shot down a low-income housing project in Kona.

[00:12:16] Randall Roth: And and that's one of the cases that Isaac mentioned that was in this chain.

[00:12:20] Peter L'Orange: Yes. Right. And in this particular case, the attorney for HUD said there was an easement on the property, and HUD would not lend us the 2 1/2 million dollars to build that project because of the easement. It was only because of intercession by our representatives in Washington that this attorney reconsidered and allowed it to go. I think this title issue is very real as to whether you can borrow money or not. It has nothing to do with the rights of Hawaiians. I Nobody wants to exclude Hawaiians, but the but the title issue is not a scare tactic. It's it's there. Okay. And this is before PASH. that we had the situation.

[00:12:54] Randall Roth: Now, Dana, I know what you have to say is is very much on point with all of this, but I, as I read your article in the paper, I see you as as looking at it uh other than through the eyes of a lawyer. Uh, tell me through what or what perspective do you have on this and and what's kind of your bottom line of the PASH case? What does it mean?

[00:13:14] Dana Naone Hall: Well, I think that we all recognize and know that native Hawaiians are the indigenous people of these islands. And I think that most people would agree that preservation of the indigenous culture is in the public interest. Um, the continued survival of native Hawaiians and their culture, particularly particularly as it relates to the land and surrounding sea, are essential to use a popular phrase keeping Hawaii Hawaii. And I think, you know, for instance, a lot is talked about, you know, Aloha spirit, you know, tourism industry bases, its a lot of its success on Aloha spirit. And you know, if if one were to take the arguments of um Ken Kupchak at face value, basically, he's saying that, you know, the the continuance of of traditional and customary rights in Hawaii would be bad for business.

[00:14:00] Dana Naone Hall: And yet, so there's no sense of accommodation, no spirit of accommodation, no spirit of respect and tolerance for the indigenous culture that's evidenced by these arguments, and I find that very offensive, frankly. I think that what we know about Hawaiian culture is that we can expect a reasonable and and peaceable practice of these rights if they're allowed to continue, and that's simply all that the PASH court does is it says we recognize these rights that exist and they and that they also have a right to be continued by native practitioners. So I think that's a very important element. I think that what Isaac said about, you know, single family lot owners not having to be afraid that there's a horde of native Hawaiians about to descend on their lots and basically strip them clean is correct.

[00:14:45] Dana Naone Hall: You know, we're we're really talking about traditional and customary practices and how they're applied.

[00:14:50] Randall Roth: Okay. You know, as I was listening to you, it reminded me of a couple of quotes that I I jotted down. One is from Justice Klein, who wrote the opinion and PASH was a a unanimous opinion. Uh, he said that it could theoretically lead to disruption, but the non-confrontational aspects of tradition Hawaii traditional Hawaiian culture should minimize potential disturbances. But then there's a quote from the Star Bulletin editorial that came out shortly after the opinion was decided and it says quote, today's militants seem to thrive on confrontation. Is there basically just some distrust on the part of some people who believe that there are militants who are going to use the PASH opinion to accomplish other goals just stopping development, for example, if they're anti-development?

[00:15:36] Dana Naone Hall: Yeah, I think I I I definitely think that that's there's that fear. But I think that what PASH can do is actually reduce the level of conflict that we've seen because it will allow for the recognition and accommodation of traditional and customary rights early on and not have um native Hawaiians have to um appeal or participate in contested case hearings to have these rights affirmed and incorporated into conditions placed on development. I mean that's that just makes good sense.

[00:16:04] Randall Roth: So if the process is is clear, and right now I guess the system is is evolving. Um, I guess we don't know exactly who decides what and which guidelines they'll use, but once that's in place, you're saying that that this is all going to be figured out early in the process and things will actually go more smoothly than they have in the past.

[00:16:21] Dana Naone Hall: I think that's the whole intent and purpose.

[00:16:24] Randall Roth: Okay. Well, I want to remind listeners that this is the Price of Paradise radio show. My name is Randy Roth. We're talking about, I guess the broad topic is cultural sensitivity, but we're especially interested in this case called PASH. If you have a question or a brief comment, you can call us at 955-8821. If you're on a neighbor island, the number is 1-800-955-8821. With me in the studio is Dana Naone Hall, who's the chair of the Maui Lanai Island Burial Council, her husband Isaac Hall, who's an attorney in private practice in Wailuku, who's represented native Hawaiians and community organizations in the development review process for 18 years, Peter Larange, who is the executive director of Hawaii Leeward Planning Conference and has been in that position for about 20 years, and then by phone, we have Ken Kupchak, who is a partner in the law firm of Damon Key, Bocken, Leong and Kupchak.

[00:17:16] Randall Roth: Again, if you'd like to ask a question or make a brief comment, our number is 955-8821. Well, our first caller is Lehua from Oahu. Good morning, Lehua. Good morning. I just wanted to make a few comments about Mr. Kupchak's article and I wanted to say that it's um that I feel that it's just another example of uh misinformed paranoia and the continued hostility um towards the people living here and, you know, towards native Hawaiians from people who are living here in our homeland. And I also feel that there are several places in the article um in which Kupchak puts forth a negative image of who we are as a people. I think that it just goes to show what little he knows about our culture and that if he took some classes about our culture, that he might know that most Hawaiians who continue to practice traditional and customary rights are not running around in Jeeps with M16s and most can't afford those kind of weapons.

[00:18:18] Randall Roth: And another thing is that homeowners shouldn't be frightened about this particular case because if they understood our culture, then they would know that there is a protocol and that there are cultural rules that we adhere to when we practice and exercise our traditional and customary rights. And so, I think it's important for our community to do their homework and to get to know us and to know our culture better. Okay, Lehua, thank you very much for your comments this morning. We move to Dot in Makiki. Good morning, Dot.

[00:18:52] Speaker 0:Dot: Dot, are you there? I'm here. Can you hear me?

[00:18:55] Randall Roth: You're on the air.

[00:18:56] Speaker 0:Dot: Okay. We were recently in Sweden and they have a law

[00:19:00] Kenneth Kupchak: there that translates sort of to every person's right, and it means that anybody can go on anyone else's property and pick flowers or gather fruit or even uh sleep for the night uh if it's a large property like a farm, but you're supposed to ask permission to pitch a tent. Uh this is a very ancient law in Sweden and I wondered if our uh commentators were aware of it.

[00:19:27] Speaker 1:Speaker 2: Uh nobody in the studio, dot, but let's take that as a comment. I I assume from your perspective at least, that seems to be working in Sweden, okay?

[00:19:35] Kenneth Kupchak: Well, I think Mr. Kupchak was saying this could have huge economic ramifications, that Sweden is doing very well economically.

[00:19:43] Speaker 1:Speaker 2: Okay, well when we and they've had it for hundreds of years. When we go to him a little bit later in the show, we'll ask him specifically uh uh to comment on that.

[00:19:51] Kenneth Kupchak: Okay. Thank you, dot. Mhm. Bye.

[00:19:53] Dana Naone Hall: Let's go to, I think it's Ish in Kaneohe. Good morning. Good morning. Basically, I wanted to ask if uh what the provisions are if a piece of property cannot be shown to have been used for traditional uh native purposes and um later on the claim is made that uh it was used for native uh rather for traditional uh Hawaiian purposes.

[00:20:18] Speaker 1:Speaker 2: Well, let's ask uh Isaac Hall.

[00:20:21] Isaac Hall: Um yes. Uh basically what Pash says is that uh if you're relying on the establishment of a custom, that the custom had to have existed prior to uh 1892. So there is an obligation to come forward and to establish the existence of that custom. Um but the opinion also states that the customs are not abandoned. So if that custom existed prior to 1892 and some and and and there was no activity on that property for a while, that would not bar somebody from coming forward later and showing that there was a traditional and customary practice on that at that particular location prior to 1892. So, well I hope that answers the question.

[00:21:07] Dana Naone Hall: Well, yeah, but see, if there cannot, if there is no documentation to show that it was never used for any traditional Hawaiian practice at any time of documented history, uh other than you know somebody say well I remember my uncle telling me that there used to be something over here. Uh what does that do to any uh Pash claim?

[00:21:29] Isaac Hall: Well, I think I think the a Pash claim is like any other claim. Um it doesn't have to be documented. It could be based on oral tradition and there's certainly plenty of oral tradition and uh kamainas who could come forward in in a in a situation and testify about that. And uh as in any other situation, it would uh stand or fall based on uh the credibility of that person and and the type of information that's brought forward. So just uh the lack of documents wouldn't foreclose a Pash claim.

[00:22:02] Speaker 1:Speaker 2: Ish, let me get Peter Lorange's thoughts on this.

[00:22:05] Peter L'Orange: Yeah, I think you pointed on a very interesting point and uh the thing is, who determines whether this is traditional or not. These are one of the things that has to be clarified. You know, whether it's an entity like the Burial Council that does this, whether there's the legislature or somebody has to determine how this question that you raise is resolved.

[00:22:27] Speaker 1:Speaker 2: And I guess from a practical standpoint, Peter, what I'm also hearing is that there has to be some point in time when it's final.

[00:22:34] Peter L'Orange: I think so. I don't think anybody from the development community anyway is objecting to gathering rights. It's what happens on the titles, what how it affects the ability to borrow money against the title. That's a question. Is is it's not a battle about gathering rights.

[00:22:50] Speaker 1:Speaker 2: So these really are practical concerns as opposed to any sort of of negative thinking about the Hawaiian culture itself.

[00:22:57] Peter L'Orange: The Hawaiian culture is an asset to development.

[00:22:59] Speaker 1:Speaker 2: Okay. Dana, I guess, you're saying it ought to be if it isn't. Okay. Ish, thank you for your call. Welcome. We go to Jim in Kahava. Kahava. Good morning, Jim.

[00:23:11] Speaker 1:Jim: Jim, are you there? Uh you have David from Kaimuki.

[00:23:16] Speaker 1:Speaker 2: Well, we missed Jim. David, why don't you go ahead and then we'll back up to Jim. Go ahead, David in Kaimuki.

[00:23:21] Kenneth Kupchak: Hi. Uh, I've read the um Pash opinion several times and uh so my like my question is basically I think to uh Ken Kupchak on the uh on the issue of of certainty and the fact that uh things have have somehow changed. Uh, the old 1858 cases talked about in in Pash and it's it's states that well, a particular uh claim for uh a suggested traditional practice was rejected there, it didn't necessarily um reject the possibility of future 1-1 claims, as Pash clarifies the Colippi decision, which also rejected a particular claim, but left open the possibility in future cases that somebody could prove um the existence of a traditional or customary right. So I think uh Ken's comments about the certainty uh reflects the ignorance of that uh potential. I was wondering if you'd comment on that.

[00:24:19] Speaker 1:Speaker 2: The ignorance of that potential? You mean we just don't know.

[00:24:22] Kenneth Kupchak: Well, well people are saying it's uncertain because they've uh that we that uncertainty has been created by Pash because they've ignored the established case law which has suggested there are cases where there could be um traditional or customary rights. So in in essence, all these comments about the effect of the on title insurance uh are merely um coming face to face with, if you will, an externalized cost. Something that people have ignored in the past in making their decisions.

[00:24:53] Speaker 1:Speaker 2: Okay. Uh Isaac Hall, you agree with that?

[00:24:56] Isaac Hall: I I do very much. Okay, well let's let's go back to to Ken Kupchak on the phone because there've been uh three or four comments uh aimed in his direction and I want to get his thoughts to uh one or more of those and then we'll return to our callers. Ken, good morning again. Aloha. Uh, you've been accused of misinformed paranoia. Uh, a specific question about uh how similar rules in Sweden seem to have been working for a long time and then you've just uh finished hearing comments from from Kaimuki that uh that Isaac agrees with. All of them are more or less directed in your uh direction. What do you think?

[00:25:21] Kenneth Kupchak: Well, I think it's fun to uh see when the messenger announces that the emperor has no clothes, that the uh first reaction is to kill the messenger. Uh, I think that uh people probably haven't read my article and I Isaac says that these things are easy to list. We know what they are. I'm saying fine, do it. There are people out there testifying in cases right now that say that these rights cannot be pinned down. They're continually evolving. Anybody might be able to use them. I am personally aware of cases where they are advocating the use of M16s for hunting. These things are going on. What are the rights? Who can exercise them? Are they continually evolving? What properties are subject to them? What happens when developed property is redeveloped? What frequency of use is permissible? What is the scope of use? Who can decide this? Who can you bargain with to reach an agreement on?

[00:26:29] Kenneth Kupchak: For instance, how do you distinguish between someone who's actually exercising legitimate rights and someone who's just entering the property for other purposes? And what liability does a land owner have for those people that are on that area? I think there are a lot of unanswered questions. They all need to be resolved. That's my focus.

[00:26:47] Speaker 1:Speaker 2: Okay. Ken, and I want to get Isaac Hall, who's who's our attorney on the other side here in the studio to to comment on that. I would just add in getting ready for the show, um, I ran across an article that was explaining that that the environmental council, which I think is Gary Gill's organization, came up with some rules in this area, but the governor said uh no, this is something that ought to come out of the legislature. I'm told that the legislature, at least some people in the legislature said, no, it ought to come out of the uh governor's office. And so Isaac, number one, what do you think about the questions that Ken has raised? And number two, is this a political hot potato that uh that none of our elected officials are anxious to grab?

[00:27:31] Isaac Hall: Well, it may be. Um, I I personally just to go down this list um, with respect to whether the environmental council needed to promulgate rules on traditional and customary rights, I think this is one example among many where um environmental impact statements have to, and always have had to, cover traditional and customary rights, cultural values, archaeological sites and the rest. And I might say [unintelligible — audio glitch] the the Supreme Court went to great lanes to show that uh these kinds of things are already protected. In other words, this the the Pash arose with an SMA permit. Our SMA law already requires the protection of sites of cultural and historic value. So this is nothing new, it's something our planning commissions have been doing for years already. Um uh as far as how the law evolves, again I'd like to go back to Washington because I think Washington state is a good example.

[00:28:28] Isaac Hall: One of the questions, well let me start off with some some people have argued, well you've said there's a a trail in this position, a traditional trail and now you're saying you want to drive on that trail. Most of the cases on the mainland and here, said well if if it evolves, the right evolves uh from a a use for walking or a pedestrian use to vehicular use, that's still protected. In Washington, the issue came up, do you have to in your in the exercise of your fishing rights, use the traditional implements for fishing? The court, federal court in that case said, no, this evolves. You get to use you get to fish, that's the important thing, but you're not restricted to using the implements uh that you were then.

[00:29:12] Isaac Hall: Um, I don't think it's necessary uh for the legislature to step in. I don't think this uncertainty is so great.

[00:29:19] Speaker 1:Speaker 2: Okay. Peter Lorange, I know you had a reaction when Ken was going through his list of questions. Uh, anything you want to emphasize or or elaborate on just briefly before we move on?

[00:29:30] Peter L'Orange: Well, number one, I I think we have a perfect example of two very competent attorneys that have completely different opinions about the same situation. And I think that this is the problem with the uncertainty, because then the uncertainty is served to planning commissions, board of appeals, lay people that don't have the background. And that's why the clarification is very important. I mean