Supreme Court Decision in the Public Access Shoreline Hawaii (PASH) Case
Price of Paradise · Hawaii Public Radio · aired 1997-06-22
Guests: Richard A. Epstein (Professor, University of Chicago Law School); John Jubinsky (attorney); Arnold L. Lum (attorney, Native Hawaiian Legal Corporation); David Forman (attorney, Native Hawaiian Legal Corporation)
Duration: 1:04:50

[00:00:00] Randall Roth: Aloha. House to go. We're broadcast live Sunday mornings on KHPR and KKUA and then rebroadcast Sunday evenings, beginning at 8:00 on KIFO. Our sponsor is the Hawaii Community Foundation, an organization that supports grassroots efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion. 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. Today we'll be talking about a 1995 Supreme Court of Hawaii decision that is usually referred to as the PASH case. With me in the studio to discuss it are John Jubinsky, David Forman, and Arnold Lum. With us by phone is Richard Epstein.

[00:00:48] Randall Roth: David and Arnold are both attorneys for the Native Hawaiian Legal Corporation and both had a direct hand in PASH. Arnold, as I understand it, you were lead counsel on the winning side in the PASH case.

[00:00:59] Arnold L. Lum: Oh, that's correct.

[00:01:00] Randall Roth: Uh, in non-legal terms, as briefly as possible, what was the PASH case itself all about?

[00:01:07] Arnold L. Lum: Well, the PASH case is really, uh, about fishing, and how it how it evolved was that there are shoreline ponds located on Nonsea's property in front of the, uh, the site where Nonsea proposed to build a hotel resort complex that have been used by by Hawaiians and by other folks, um, to gather shrimp for opelo fishing and the persons who were using the ponds uh, to gather bait, uh, shrimp were concerned about the impact of Nonsea's development on their ability to use the ponds and on the ponds on the biological integrity of the ponds themselves.

[00:01:44] Randall Roth: So, so they were basically afraid one day they would go for shrimp and there'd be a a big hotel there or there would be something that would prevent them from doing what they'd been doing for years and years and years.

[00:01:52] Arnold L. Lum: Oh, that's correct. I think the, um, image in our minds was there'd be a chain link fence around the pond saying, uh, you know, no trespassing keep out.

[00:01:59] Randall Roth: So they requested a contested case hearing, uh, that is they wanted a, an administrative hearing where they could have their views, um, made known to the Hawaii County Planning Commission and the Planning Commission uh, supported by Nonsea, uh, turned down the request and that's how the case got started. Okay. Um, John Jubinsky, you're a title insurance lawyer, and I guess if I were to describe it simplistically, you're on the opposite side of of the PASH case from from Arnold. You weren't directly involved in the case itself, but right now, you're at the center of attention. You represent a large title insurance company and, uh, as I understand it, they're very much affected or feel they're very much affected by this PASH case. Uh, tell us a little bit about that.

[00:02:42] John Jubinsky: That's correct. The problem really with PASH is not so much that it, what it decided, but how it decided and how broadly it spoke. Uh, PASH, uh, affects every vacant piece of property in Hawaii or in the court's words every piece of property that's less than fully developed. And it doesn't make any difference whether it's residential property, commercial, hotel, or any other use. And the problems I face as an underwriter for a title insurance company is on a daily basis, people are asking whether their undeveloped land is affected by these gathering rights or these PASH rights. And the court didn't give us any guidelines. It didn't give us a roadmap. And that's the difficulty. And that difficulty is leads to a tremendous amount of uncertainty and this uncertainty is not comforting for investors and lenders. They just refuse to do it and that's the problem.

[00:03:33] Randall Roth: So the thought of of some Hawaiians doing something on property that they've done for years and years, that in and of itself doesn't trouble you, you're troubled by the uncertainty that exists now so far as what people generally can and can't do with their property.

[00:03:48] John Jubinsky: That's correct. All we want to know is what the rights are, who has them, when they can be exercised and what do some of those words in the court's decision really mean.

[00:03:59] Randall Roth: Okay. David Forman, uh, you clerked for Justice Klein who wrote the PASH opinion. Uh, what's your reaction to what you're hearing?

[00:04:07] David Forman: Well, first I'd like to make it clear that obviously, Justice Klein authored the the decision. I I did some research for him and I drafted opinions while I was there, but obviously I I'm uh I can state what I think the decision means. That doesn't necessarily mean that's what Justice Klein or the four other justices on the Supreme Court think it means.

[00:04:22] Randall Roth: You're not the official spokesperson. I understand that. But uh, by the same token, you're recognized in the legal community as having some expertise in this area.

[00:04:31] David Forman: Well, the uh, PASH decision, um, like most other judicial decisions decides the case that that was before it. So when John saying that, uh, it was broadly it, broadly stated, uh, that's uh, that's true. And there are a lot of questions that are unanswered and uh in future cases, uh the court will have an opportunity to to speak to those issues. Um, I think that um, the case uh stated what the law is, how it applies and uh what principles govern land use processes in Hawaii. And um, I haven't uh, you know I'll take John's word for it that the the investment community is having some problems with the decision, but I think we need to um go back to the basic principles of of uh the dispute at hand when we're thinking about making changes to the law.

[00:05:21] David Forman: Uh the the court said that the law requires traditional and customary rights to be protected. And uh if we're going to change that, then um, we gotta be sure that we uphold the the basic principle of protecting these traditional and customary rights.

[00:05:37] Randall Roth: As I read the article in this morning's advertiser on page B3 that you and Arnold wrote, the the last paragraph or two uh gave me a mental picture and and I'm not sure it's accurate or not. Are you suggesting that if any landowners don't want to worry about these PASH issues, that they simply have to come to the table ready for tradeoffs and and does that mean that there is a way of buying um back exclusive property rights so far as their land is concerned?

[00:06:07] David Forman: Well that may be one possibility. Um, I I just think that a lot of the legislative proposals that came out last year were were pretty oppressive uh from the perspective of Native Hawaiians. Um, they were the the people that were required to come forward uh and a very owner's burden was placed on them. Uh if if the landowners want to change the law to get the certainty that they're asking for, uh they necessarily will be taking something away from Native Hawaiians and if they're going to take something away from Native Hawaiians, then it's only fair that something is is given back.

[00:06:37] Randall Roth: Okay. Well, Richard Epstein is a professor at the University of Chicago and he's with us by phone. Richard, I know you've done a lot of writing in this area as well as in other areas. Um, you're an expert in this area, but you're not an expert in the history of Hawaii or Hawaiian cultural practices. What are your thoughts on on this PASH case and the implications of it?

[00:06:56] Richard A. Epstein: Well, it seems to me that the pattern that I've observed in the PASH case from afar at least is not dissimilar to those that one sees in other places where native rights have been put into issue against modern development. Uh, I think the decision here is actually quite an ominous one in certain ways and let me see if I could sort of disentangle the various threads. Uh, the least controversial aspect of the opinion as best I can tell is that which simply tracks the original conveyances that were done back in the 1850s, whereby there was a reservation of native gathering rights to those people in the given vicinity, uh, and they were entitled to have them against the developers and to the extent that those things had been honored and consistently enforced, I don't think there's any real difficulty that the decision makes.

[00:08:12] Richard A. Epstein: Second element about the case I think which is difficult is that you are enforcing these new rights not in traditional means, that is by bringing suits to pull down fences, but you're doing it in the course of a planning process where everybody comes in there. The rights are completely indefinite and nobody is quite sure within that process how it is that you satisfy a claim. Richard, as I read your article in this morning's paper, what struck me is your description of a of a collision of sorts between fundamental principles on on one side and fundamental principles on another side.

[00:09:35] Randall Roth: Is that what we're seeing here is a a collision of cultures?

[00:09:38] Richard A. Epstein: Um, yeah, although I the the collision that you're talking about can take place within cultures as well as across cultures. Um, the the basic arguments are I think these. I think what what happened in this case is that both with regard to the procedures for enforcement on the one hand and the definition of rights on the other, the Hawaiian courts under the guise of protecting old rights has in fact created new ones, and that will create incredible problems with respect to everybody else.

[00:10:48] Randall Roth: Okay. Well, I want to remind listeners or tell people who tuned in late that this is the Price of Paradise radio show. My name is Randy Roth. We're talking about the implications of the the PASH case. If you'd like to ask a question or make a comment, our number is 955-8821 or if you're on a Neighbor Island, it's 1800-955-8821. Again, if you tuned in late but would like to hear the show in its entirety, you can catch it tonight on KIFO, that's 1380 AM. With me in the studio, I have David Forman. He's a staff attorney with the Native Hawaiian Legal Corporation. But one thing that hasn't been mentioned yet is what happened in the legislature this year.

[00:13:21] Randall Roth: Very briefly, John Jubinsky, can you tell us about this, I as I have understood it, it's called Senate Bill 8. What was it all about, what happened to it? Again in non-lawyer terms in less than a minute. I'll get a reaction from either Arnold or David and then we're going to start with the callers.

[00:13:36] John Jubinsky: It was about an effort in the Senate to determine or to establish a process for the determination of these rights. An effort to determine who the rights are owned by, what they are, and what kind of procedural process would be effected to establish it. The answer is we could, there was no consensus. And, and because of that, the legislation died.

[00:14:56] Randall Roth: And a resolution came out of the house, however. David or or Arnold, do you want to, uh, take issue with anything that John has said in describing it, uh, before we go to a caller?

[00:15:06] David Forman: Well, first I I think I would uh, wouldn't necessarily agree that the court is the wrong place to determine the rights. Um, I I sensitive to the landowners' concerns that it may not be the most efficient place for them. But I think um, and this reminds me of a point that Richard made earlier, uh that the court didn't simply reaffirm rights, but expanded them.

[00:15:49] John Jubinsky: Uh, I got to get to this one. Uh yeah, we we real property lawyers believed uh that this issue was resolved in 1858.

[00:16:44] Randall Roth: Okay, well let's go to some callers and see what they have to say. First, Dave from Kailua. Good morning, Dave.

[00:16:49] Speaker 1: Uh, good morning, Randy. Uh, I think that uh, taking a look at the Sunday paper here today in which the focus articles and your panelists articles were included, uh, if you take a little broader look at it, you'll see the beginning of the focus section reads uh, Paradise lost, where it describes the charm and romance of Polynesia as having been lost in a in a process of building hotels to make money. Uh, the second article on there talks about the faces of poverty in Hawaii, where Peter Adler describes the many of the social concerns that we're attempting to address. Yeah, I heard the question, and I'd give the problem kind of answer to it. Um, there are many social problems that exist in every nation, but you're certainly not going to solve the problems of inequality of wealth or the declining standards of living by messing up the system of property rights, which otherwise allows you to have the basis for production and development and jobs for everyone.

[00:19:00] Richard A. Epstein: Many of which are inconsistent with the kinds of beliefs that I have held. As you mentioned earlier, the title of my book, 'Simple Rules for a Complex World,' basically wanted to argue that a consistent common law application would out-perform the modern legislative state. And what I would say quite simply is, you're not going to solve PASH by the same set of policies that got us into the mess that we have in virtually other areas of social life, including Hawaii. I mean we have to learn that you can't reproduce or we you cannot redistribute the wealth which you have not produced. And you will not be able to produce consistent wealth unless you give a return to labor and a return to capital both, and that can only be done through a market-type economy.

[00:19:39] Richard A. Epstein: It cannot be done through a system of centralized planning. And I think one of the real problems that Hawaii has is that wholly apart from the PASH decision, that the centralized planning and land use control mechanisms in the island are, as far as I'm concerned, simply a chapter out of Dante's Inferno.

[00:19:55] David Forman: Okay. Dave, I want to get your reaction. I think what I'm hearing from Richard is something along the lines of what was in the Forbes article not long ago, the one entitled the 'People's Republic of Hawaii.' Dave, from Kailua, quick reaction from you, and then we'll go to another caller. Well, what he argues is a as a paradigm in which individualistic, competitive, uh you know, a process of simply maximizing individual or corporate interests and promoting their survival, uh without any significant concern for the the impacts that it creates, or it doesn't really assume the responsibility for those those impacts. So, I I don't really see that he's really argued a cohesive system of social uh interrelationship that seems to be he seems to be arguing for, but doesn't really accomplish.

[00:20:50] Speaker 1: Good morning. Very impressive panel. Uh I have a question which actually, I think speaks directly to the PASH decision, but to many of the problems that come up when we discuss native Hawaiian legal rights. And that is the question of definition of who is a Hawaiian and who can exercise these rights. As I understand the current OHA definition, uh a Hawaiian is anyone who had an ancestor, direct ancestor who was present in Hawaii uh at the time of contact, which is the late 18th century. Um, now approximately nine generations have uh have uh gone by since the first contact and nine generations means 512 ancestors. So, um it is conceivable I guess under the current definitions that somebody who is 1/512th Hawaiian could come forth and claim to be able to exercise the rights that are guaranteed in the PASH.

[00:21:50] Speaker 1: I would like to hear what the panel has to say about this and whether this is a problem.

[00:21:54] David Forman: Okay. Um David Forman or Arnold Lum, who wants to take this? Arnold Lum. One I just try and see if I can address that. Uh first of all, while the fraction may be mathematically correct uh because the population mix was largely uh pure Hawaiian until the mid 18th century, I think actually what has happened is that we have uh persons who might be as little as 1/128th Hawaiian uh able to assert those rights. Um I happen to know a couple of folks who are 1/128th Hawaiian and who are registered members of OHA and uh they have no problems with uh the fact that they have uh such a small amount of Hawaiian that no one knows that they they have that ancestry um and they would uh still like to be able to avail themselves of uh the uses and practices uh given to Hawaiians.

[00:22:43] David Forman: I think the real issue here is whether or not uh the the uh preference so so to speak given to a particular class of people has uh any problems uh in light of our uh federal Constitution, and uh so far the courts I think have answered uh no, because Hawaiians were politically uh a separate sovereign nation uh until the uh overthrow in 1893. I don't know whether that exactly answers your question but.

[00:23:12] Richard A. Epstein: Well, my problem is that [unintelligible — audio glitch] the past America has had the problem of of um regarding different uh racial groups in in different categories so that in the old days in the South there was the idea of taint, which was that if you had one drop [unintelligible — audio glitch] black blood, you were therefore an African-American and you suffered all the consequences. Now in Hawaii we seem to have a reverse taint. If you get one drop of Hawaiian blood you get all the privileges. And I'm wondering whether either either side of that formula is really just and and acceptable to the public.

[00:23:44] David Forman: Well, I think there is a range, of course, uh as you pointed out, and I I don't have a a pat answer to it. I think many of the Native American uh folks who have organized into tribes or nations have attempted to address that by having a blood quantum cutoff limits. Uh here in Hawaii we have not done that um and I I don't sense that there is any uh any trend towards trying to limit say OHA membership uh to persons with uh a certain blood quantum. In in the court's decision um it it identified this uh the question of who is a Hawaiian not as a racial question, but as a political question and uh and recently a Judge Ezra in a federal court has uh has uh made a decision that's consistent with that view as well.

[00:24:35] David Forman: So we're not really talking about race, we're talking about the pre-existing sovereignty of the of the Hawaiian people.

[00:24:48] Speaker 2: I'm calling because I've got two questions. I've read the decision and um I think that uh I agree with Mr. Jabinski that it's a very broad decision and uh I think that David addressed the question regarding uh somewhat of of not having to be Hawaiian um by blood. And uh I I think that uh uh I'd like the panelists to address um whether or not you have to be Hawaiian distinctly. And then also, I'd like somebody to talk about the the definition the the traditional definition of a tradition in law, and whether that applies here, and whether uh how you define what a tradition is.

[00:25:32] David Forman: Okay, I'm going to direct the first question to Arnold Lum, and then we'll hear from Richard Epstein with respect to the second one. Keahi, the answer uh to the question of of who uh gets to use the rights is not uh yet been uh I think answered by any appellate courts. There was a trial on the Big Island about two years ago, uh almost three now, in which uh the issue was raised as to whether or not members of a extended Hawaiian family since Ohana is a well recognized uh Hawaiian uh concept and practice, whether non-Hawaiian members of an Ohana uh would be able to share those rights. And the the findings of the the trial court were were yes, those rights are not racially limited because Ohana practice is part of our our Hawaiian way of life. Uh that case has not however been reviewed by by any of the appellate courts in this state.

[00:26:28] Richard A. Epstein: Yes, I am. You heard the question and I know in your article this morning, you talked about Blackstone and and some other things related to what he asked. It is really quite ironic, but certainly the legal the standard authority with respect to the definition of customary rights in you know, Anglo-American law is still Blackstone's account. And and what he basically said about this is that he was worried about subjectivity on the one hand and he said, we could not call something customary which is simply left to the option of every man whether he will use them or not. I don't think that's an issue in this particular case. But it turns out that he also says that they have to be open, they have to be consistently and continuously used and consistently asserted, and you have to know who has them and when they were created and so forth at some level.

[00:27:11] Richard A. Epstein: And those are reasonably strict conditions, which essentially mean that sometimes in which you could show a continuous standardized usage by a well-defined population will qualify as a custom, otherwise not. In my judgment, if you were to try and put the sort of customs that were created by the PASH decisions, not the earlier decisions, they would flunk Blackstone's test pretty consistently. And I think what you're under here is not only a definition of customs that are unique to Hawaii, but you're also using a definition of custom, which is found nowhere in Hawaii or anywhere else until the PASH decision. And one of the regrettable features about the Judge Klein's decision in that case is, I don't think he had the foggiest notion of whether he was simply applying consistent old notions or whether he was inventing new ones and I don't think he much cared. And I think it's that transitional element uh which is now created a kind of a disequilibrium which is likely to continue having listened to this conversation uh for generations to come.

[00:28:08] David Forman: Uh sounded like fighting words uh to me from David Forman's point of view. David, you were Justice Klein's clerk during uh that period of time. Uh any reaction to what you just heard Richard say? Well, I think Justice Klein uh made a very studious attempt to deal with the unique situation of the development of property law in Hawaii and when when King Kamehameha um uh and the Hawaiian legislature uh adopted um this transition from the communal land tenure into a a more Western system, uh they were careful to preserve the uh traditions and customs of Native Hawaiian tenants. And.

[00:28:47] Richard A. Epstein: They did it. But you see that nobody here says that the specific reservations that were contained in the original grantor were the subject to being contested. Uh what makes the decision controversial is that all of those things were acknowledged on the other side. None of them were in particular issue in that case. And then the issue was whether or not there were additional customary rights which were not contained in the reservations, which ought to be preserved as well. And I think it's on that second point that the decision fell down very severely.

[00:29:18] David Forman: Well, I disagree with uh Professor Epstein on on that point. Um and you know, it would have been inconsistent. He's arguing about the uh uh Blackstone's commentary's definition that the court dealt with that question uh by by saying that under English common law, uh you couldn't do what Hawaiians did at that time, but it's it's clear that King Kamehameha wanted to preserve that practice. Okay. In case you tuned in late, I'm Randy Roth, and this is the Price of Paradise radio show. We're talking about the implications of the PASH case. And in just a minute I'm going to challenge our our lawyer guests to try to explain to non-lawyers why they should care about this because it gets technical very quickly.

[00:30:03] David Forman: Um, but if you would like to ask a question or make a comment, we've got some lines open and our number is 955-8821. On a Neighbor Island, it's 1-800-955-8821. With me in the studio is David Forman and Arnold Lum, who are both attorneys with the Native Hawaiian Legal Corporation and John Jabinski, who is an attorney who represents the Title Insurance Company of Hawaii. By phone, we have Richard Epstein, who is a professor at the University of Chicago Law School. Uh, John Jabinski and I know you said earlier why this is important, but I want to try once again for each of you very quickly in a matter of seconds to say to non-lawyers, why they should be straining to understand what's being said, how does it impact on them? John Jabinski?

[00:31:50] Speaker 3: I want to say it again. It applies to every piece of vacant or in the court's words less than fully developed property. The court specifically told us they're not going to tell us what less than fully developed means so we don't know what it means. And it doesn't make any difference if your property is zoned residential, hotel, commercial or what or or conservation, it matters not. So, everybody's got to be concerned because everybody's property is affected by it. And it doesn't matter that this right may not have existed for 100 years. If it existed pre-1892, David I think, it exists and it could have been intermittent. So we're all affected.

[00:32:33] David Forman: So if there's room on my lot to expand my house, I may have a problem with my mortgage or title insurance or being able to sell it or or something?

[00:32:42] Speaker 3: Every day I get faced with the question of whether or not the PASH rights exist with respect to a piece of vacant property.

[00:32:50] David Forman: And your client, Title Insurance companies in general, are basically saying we're not going to insure title with respect to these issues.

[00:32:58] Speaker 3: What we're trying to do is we're trying to make a decision on a case-by-case basis trying to make an informed decision as to whether or not it is reasonably likely that these rights would be asserted to a particular piece of property. It's a very difficult and almost impossible task.

[00:33:16] Arnold L. Lum: Arnold Lum, to non-lawyers out there in a matter of seconds, in John took a little, few more seconds than I had hoped for, but in a matter of seconds, why should they care about what we're talking about, this PASH case and its implications?

[00:33:29] Richard A. Epstein: Well, let me just start off actually by trying to to respond a bit to to what John and Professor Epstein have said. Um, I I'm not sure that that the world is, at least in Hawaii, as we know it [unintelligible — audio glitch] going to fall into the Pacific as a result of the PASH decision. And the reason I mentioned that is because uh I practiced in Massachusetts for 10 years and and in Massachusetts there are all kinds of weird, uh, at least by Hawaiian standards rights. For example, the right to cross private land to get to great ponds in the winter to be able to go ice fishing and cut ice. The rights are there.

[00:38:00] Speaker 1: Wait, to um demand that public uh water dependent activities only be undertaken uh on uh land that was filled in Boston and around Boston Harbor. And uh you know, Massachusetts has not fallen into the ocean as a result of the court's recognition of those rights, some of which were given by colonial ordinance in 18, in the 16, I'm sorry, 40s.

[00:38:21] Speaker 2: So they've got something like Pash there, and they've had it for some time, the sky hasn't fallen, everyone's getting along just fine.

[00:38:28] Speaker 1: Everyone's getting along and what Massachusetts did was to adopt a licensing uh procedure, which we already have in our statutes under the Coastal Zone Management Act uh to to work out uh in as non-confrontational a manner as possible, the uh the issue of land owner rights and and uh traditional and customary rights in Massachusetts.

[00:38:47] Speaker 2: Okay. David Forman, why should non-lawyers out there give a hoot about this?

[00:38:51] Speaker 1: Well, I mean, we had originally proposed the title of our our article was Hawaiian rights, accommodation or extinction. And that's I think that's one of the underlying questions. Are we going to accommodate these traditional and customary practices or are we want to contribute to the piecemeal uh extinction of these rights? I think the concerns uh stated by uh John reflect the disconnection of of land owners with their community. Um, I have a an attorney for a large uh land estate here in Hawaii uh in his individual capacity, said that he read the decision as meaning as telling land owners that you need to understand your land.

[00:39:28] Speaker 2: Okay. Richard, we we our phone lines are full. We want to get to them real soon. Could you in a matter of seconds tell us again just why this is so important to everyone in Hawaii?

[00:39:37] Speaker 3: Um, yeah, I think it's for several reasons. One is I don't think the situation bears any relationship to the Massachusetts situation because those were specific customs over certain classes of land, which left for example, major urban developments completely unaffected. And the second reason why I think it's much more important, in addition to its pervasive, is that this kind of thunderbolt could come from the sky once, reviving customs that have been dormant for 100 years. There's nothing which says that the same form of judicial adventurism won't occur again with respect to water rights or with respect to some other form of right, which could create impossible situations. And the third point is, it's simply an illusion to think that easy voluntary accommodations will take place. These will be protracted, hard-nosed buyout negotiations. You've already seen the political dislocations from the February legislation. You're going to continue to see them for the next generation.

[00:40:26] Speaker 2: I'm not sure, did I detect a smile on your face Arnold when Richard said this might appear in some other areas, water and and other areas?

[00:40:32] Speaker 1: Uh, well, uh Yes, I Richard [unintelligible — audio glitch] think you're probably aware [unintelligible — audio glitch] state water code, in fact, expressly uh recognizes uh native Hawaiian water rights. And and we're in the midst of a of a big controversy right now on, I know about the Robinson and the Ni'ihau show.

[00:40:49] Speaker 3: Yeah, right. So that's the one from 20 years. Okay, that's what

[00:40:52] Speaker 2: Okay. Uh, gang, we we said something that touched a nerve out there because all of a sudden our phone lines got busy and I'm sure there are other people trying to call and getting a busy sign. So we're going to move through our callers as quickly as we can. Let's start with Norman from Honolulu. Norman, go ahead.

[00:41:06] Speaker 4: Yeah, my remarks refer reference to the article that Professor Epstein has in paper this morning. Uh he refers to the conflict between the Western and traditional. I think however that he's kind of uh glossing over the fact that traditional law isn't consistent. It doesn't necessarily have clarity and aren't necessarily uh fitting within the confines of uh the uh Western law. Then as a consequence, what we are observing here in Hawaii is something that's found on other Pacific islands west of here and uh that this is a matter that takes a long period of time to work out and not something by repealing uh to uh English principles of law which uh haven't necessarily fit here in Hawaii or elsewhere.

[00:41:57] Speaker 2: Okay. Norman, I'm going to take that as a comment. Uh we've heard Richard's thoughts already uh in the hour and so rather than have him respond at least right now, I'm going to move to another caller. But Richard, if there is something specific you'd like to say about Norman's comment, I'll give you an opportunity to do that before uh we we close the hour. We go to Lila in IA. Good morning, Lila.

[00:42:15] Speaker 5: Good morning. You know, I am very concerned because I have gathered and I am Hawaiian. I'm not 50%. But I would like to know exactly how many pieces of property have not been given title insurance, how many mortgages have not been given out and how many um loans have not been given out because of this? I think this is a way that the legal community is scaring the populace in general. As a Hawaiian, I feel we have responsibilities when we gather. We notify the people and then we gather. Now I also understand Lila, let me Lila, let me come back and let you finish but you've asked a really good question because I got to tell you I'm scared when I hear what what John has to say about the implications of Pash. Let me ask him the question that you've asked and then I'll come back to you and I'll let you finish. John Jibinsky.

[00:43:13] Speaker 1: Yeah, I I don't know the exact answer. Uh all I can tell you is that I probably get the request and I only represent one title company out of many on almost daily basis. Uh we accommodate some of them by saying we were willing to remove what we call the exception from our coverage. Uh I had one recently two days ago, well, yeah, three days ago. A 50 acre piece of property just outside of Hilo, uh they asked the removal of those uh exceptions and [unintelligible — audio glitch] said no because it didn't look like uh I could make a judgment call as to whether or not those rights could be asserted. I can't give you quantitative numbers, but I can tell you that they are being declined and that the lenders, some lenders will not even uh go to appraisal if you have the exception in the preliminary title reports. Other lenders are trying to address it as a a evaluation issue. Uh in numbers now, I can't tell you. I'd say less than 50% are passing though right now.

[00:44:16] Speaker 2: Lila, I interrupted you a little bit ago. Want you go ahead and finish your comment.

[00:44:20] Speaker 5: Yes, because what is occurring is there are property owners that are refusing the gathering rights to people. And so then the Hawaiians have to go ahead and gather, uh but they have notified the people. Now, I understand that this problem occurred partly because in gathering, um some gatherers were hurt. And that can be a problem and that should be clarified that if you are going to assert native rights and if you have uh have do something foolish, then it's your fault. However, um I feel that in coming up with too many uh laws and definitions, it's really limiting these rights and this is what the Hawaiians are battling. The title insurance companies should have started this back when they first came into Hawaii. And they created the problem. The Hawaiians did not. But the burden is falling on us and we are looking like the bad people.

[00:45:31] Speaker 2: Lila, I really appreciate your question and your comment this morning. I've got some people who've been waiting. We're running short of time. Thank you very much. And I know my guests have some comments to make, but I want to get to to at least two callers who've been waiting a long time, and then I'm going to let the guests uh address anything and everything and and provide some closing remarks. Uh Clinton from Kanalu, good morning, Clinton.

[00:45:51] Speaker 6: Uh good morning, Randy. Uh I think Blackstone is eminent authority, but uh it seems to me that we have uh even better authority closer in geography and closer in time. Within a decade of the Great Mahele, we had a decision here called Oni against Meek, which Justice Klein dis- dismissed in the single sentence, but I'd like Mr. Foreman to explain uh if he can, why that case which was decided within uh 10 years of the Great Mahele doesn't really control.

[00:46:19] Speaker 1: Uh David Forman in our studio is now staff attorney for Native Hawaiian Legal Corporation, but he was Justice Klein's clerk at the time the Pash opinion was written and for whatever reason in the legal community David, um your your thought of in conjunction with the Pash opinion, can you respond to Clinton's question? Well, I I disagree that Justice Klein uh dismissed the decision in in a uh uh in a footnote or in passing in one sentence. Uh uh anybody that's read the decision uh can clearly see that uh that some serious thought went into uh the the Oni versus Meek decision. And uh as uh John mentioned earlier, I think it's the problem of what people believed. Uh people read the decision and and thought it meant one thing, but they never went to the court and and got that explained. Uh Clinton, what do you think?

[00:47:05] Speaker 2: I'm not satisfied with the answer. Oni against Meek was written among other by Justice Robertson and he add on his court John EE, who is an eminent Hawaiian, a great Ali'i and certainly within 10 years of the fact, they knew more about what was happening and what was meant by those statutes than a court 150 years later.

[00:47:24] Speaker 1: Well, um I I would just make, you know, in this form it's a little hard to go in uh in a uh way that non-lawyers can appreciate. Uh but uh hopefully an article that I'm working on will be published soon and uh and Clinton can enjoy that and we can talk a little bit more later.

[00:47:39] Speaker 2: Well, and this touches too, I guess on on the whole issue of what some people refer to as judicial activism, activism. To to what extent is the court bound by decisions of the past as opposed to to being able to um uh to resolve these in a way that makes sense to the to the justices now?

[00:47:57] Speaker 1: Yeah, and I think the only the Pash decision is consistent with Oni versus Meek. Now, uh Clinton obviously disagree.

[00:48:02] Speaker 2: Okay, we've got a disagreement there. Clinton, thanks for your call. We go to Linda from Kaimuki. Good morning, Linda and thank you for waiting so patiently.

[00:48:10] Speaker 7: Hi, you were talking before about these indestructible rights having value. And my question is, they have value and occasionally certain Hawaiians will have to be compensated for that value. How do you determine which Hawaiians? And then if they're indestructible, what about future generations making claims later on?

[00:48:30] Speaker 2: Very good question. Uh Arnold Lum, uh and and let me read um uh from this morning's article that you and David wrote, uh you have, if person's unwilling to accommodate native Hawaiian rights under state law and existing land use processes insist upon altering the status quo, they must come to the table with viable trade-offs. And as I mentioned earlier in the show, to me, this gets into what Linda is asking about. Uh what do you give, whatever you're trading? What do you who do you give it to? And does that extinguish the rights of future generations? How do you actually work out a trade-off of some kind?

[00:49:05] Speaker 1: Well, I think the easiest way to look at that conceptually is perhaps to talk about access because I think access is something that we're all familiar with on a day-to-day basis. Um I think that land owners uh when they seek to develop, will will trade in the sense that they they will be required to to listen to folks who have used the land that they're seeking to develop uh for access, um, you know, perhaps to get to a gathering site or to gather on the land. It it it doesn't really matter perhaps to go surfing even across the land to get to the water or fishing. Um and this is not a uh a difficult, I think uh issue because we have rational means available today uh to deal with with access uh questions in the face of development. I don't see uh Hawaiian rights as as presenting any more problems to land owners than they will would already have to to deal with in in obtaining development permits. Um so really, the trade-off, I think is that the land owner has to uh ensure that the rights are not extinguished on his land and and in in exchange for which the land owner will receive the right to develop.

[00:50:20] Speaker 7: Um, I think that's really simplistic. I mean, I I understand that Nonse Corporation was going to buy some land and develop and spend like something like $50 million here in the state and they couldn't because they couldn't get title insurance on it. And when you're looking at a development, I mean, if there are herb plants or things that are traditionally gathered on a big huge parcel of land, if I were a developer, at this point, I would be really scared to to put anything on any of it because you've got to build a structure somewhere and wherever you build a structure, what's to prohibit somebody from coming in later and saying, well, there used to be a special plant that I used to pick here or my grandmother or my great grandmother used to pick and you know, now I want some compensation for that or I I

[00:51:09] Speaker 1: Well, the issue of whether whether there's monetary compensation available to practitioners is has not been addressed in this state. Uh it has been addressed uh in the federal courts in regard to Indian uh gathering rights and uh so there's a mechanism available that we could we could follow if if we so chose to, or if the issue presented itself in this state. There there are a lot of people Arnold that I think think that's where this is headed.

[00:51:54] Speaker 7: Isn't that the problem why people aren't giving title insurance?

[00:51:57] Speaker 1: Well, because that's the fear. Nonse had title insurance. I think John can correct me if I'm wrong, but I believe they had a title insurance policy and that wasn't a But that was before the Pash opinion. That was before the Pash opinion. Let me get a reaction from Dave Forman and then I'm going to give all the guests an opportunity to to close, but Linda, I appreciate your your question and David Forman has a response to it. Yeah, I think this is a misconception that was brought out during the hearings on the on legislation that was proposed. Um, somebody appeared before uh the the Senate and suggested that Nonse had problems because of Pash and um Senator Solomon, who represents that area, jumped in and said, you know, that's that's not true. Nonse had financial problems independent of the Pash decision. And as as Arnold and I stated in our article, Nonse wasn't prevented from developing the land. Uh the Opai were still going to be in the ponds, they just wanted to exclude native Hawaiians although they were inviting all kinds of other members of the public onto the property. Uh in case you joined us late, this is the Price of Paradise radio show. I'm Randy Roth. We're talking about the Pash case and its implications. Uh if you would like to catch the show tonight in its entirety at 8 o'clock on KIFO, that's 1380 AM, you can hear the show in its entirety. Also, our conversation will continue on the internet, uh immediately following this show if you would check with popweb.org. It's right there in your computer and what you'll find is that if you click on discussions and Pash, you can put in your two bits on this topic and you can read what others are saying. That internet discussion on popweb.org will continue until next Saturday when we'll have an abstract available for people to read.

[00:57:00] Richard A. Epstein: reconsideration or appropriate adjustments are going to be idle in particular cases, and that the lines will only become harsher as time goes on. So I think the decision is something that one has to regret, and I frankly don't think there's any way that native ingenuity of one sort or another is going to be able to solve this problem in the short run. So, I come out of this discussion thinking it's a lawyer's feast and something of a social disaster.

[00:57:23] Speaker 1: Richard, thank you for participating this morning. That was Richard Epstein, who is a professor at the University of Chicago Law School. Arnold Lumm, you were one of the litigators, a successful litigator in the Paash case, a couple minutes to um sum up your thoughts.

[00:57:37] Speaker 2: Oh, yes. I think that if one views the recognition of customary rights as creating uncertainty and impeding the progress of development as Professor Epstein has has noted. Uh, let me just suggest that I think we've had to deal with these issues in this country in the United States throughout the history of the country and since at least 1823 when the United States Supreme Court first recognized that Indians had rights in the face of western fee title. I think uh the history of our country is that we've always abrogated such rights when they interfered with land development and that we've gotten used to that process. All the Hawaii Supreme Court did in the Paash case was, I think, to draw a line in the sand and say, enough already.

[00:58:18] Speaker 2: I don't think the world is going to fall apart uh because of Paash. Uh we we're obviously in a period of of economic change. Uh we've gone from an agrarian economy to a to a tourist linked economy uh which pro which doesn't provide a lot of of uh economic stability uh and I don't think Paash had anything to do with that. Uh, I was uh just sitting in the office on Friday when something came over the internet and uh it was a article published in uh New Zealand in the Dominion, uh last week and this just happens to be that [unintelligible — audio glitch] looked at it when I was uh uh leaving the office and the uh the writer there uh said, surely some recognition of the special status of Maori people is unobjectionable. Uh that's all we're saying here, surely some recognition of the special status of the people who had political sovereignty of this country uh prior to 1893 uh is unobjectionable and uh that that's not such a bad thing.

[00:59:11] Speaker 1: Okay. That was Arnold Lumm, of the Native Hawaiian Legal Corporation. Thank you, Arnold. John Jibinsky, lawyer here in Honolulu represents Big Title Insurance Company. Couple minutes to sum up your thoughts.

[00:59:21] Speaker 3: Well, I pretty much agree with Richard. Uh Hawaii has a reputation and everyone knows that its development process is uh notoriously long and onerous. Uh, I think Richard said it's right out of Dante's Inferno. Uh, Paash is going to exacerbate it. In simple terms is, if I'm a developer, if I'm an investor, if I'm a lender, uh why will I put a dime into Hawaii in the face of this uncertainty? Why should I put it here until uh when I can put my money elsewhere? They're not going to do it. They're not going to do it until we give them certainty. And I don't know how much certainty we can give them in the context of the Paash decision. I think it's going to take some legislation to define it. I think it's going to take some compromise on the community, and I think the court's got to come to realization and grips with the fact that they wrote a decision that was so broad and did such damage to the real estate landscape that they've got to repair it.

[01:00:17] Speaker 3: So, I just think this is going to be a real big problem in the short run. And the the folks on the mainland that are investing their money aren't going to put it here until we tell them that they've got some certainty.

[01:00:28] Speaker 1: That was John Jibinsky, lawyer here in Honolulu. David Forman, lawyer with Native Hawaiian Legal Corporation involved uh as a clerk with Justice Klein when the Paash opinion was written, you've got two minutes to sum up your thoughts.

[01:00:39] David Forman: Well, I think uh any any future legislation that's contemplated, you know, one of the voices that was missing in the last session was the voices of the lenders. We need to have them coming in and and telling us why are they making these these decisions and uh, um, you know, we get that on the table, the questions that Lela Hubbard asked uh maybe we can get those quest- those questions addressed. Um, you know, these these practices are continuing, you know, that what the Paash decision said is that they're not second class rights that that permitting agencies can ignore. Um and I might just if Lela Hubbard's still listening, tell her that her concern about liability is a red herring, you know, the legislature's already addressed this. Just take a look at chapter 520.

[01:01:16] Speaker 1: And that was the comment that if a cultural practitioner got hurt while on somebody else's property, maybe they would sue that property owner.

[01:01:22] David Forman: That's right. These these kinds of of um concerns are being raised uh [unintelligible — audio glitch] scaring people but but a lot of them are can can be addressed. And uh that's what the the Paash case said, um that you just got to uh you can't ignore these rights. Um, it doesn't mean that development is going to stop in Hawaii, development can move forward, uh but we want to try to uh as much as possible preserve these traditional and customary rights. There may be situations where these rights um are not preserved, but uh if it is all at all feasible to preserve these rights, that is what the permitting agency should do.

[01:02:01] Speaker 1: Okay. Well, there you have it, folks. The Paash case and its implications. The more I talk to people here in Hawaii, the more I believe that this is a a tremendously important issue. And regardless of of which side of of the many sides there are to this issue you happen to be on, I encourage you to um to learn as much about it as you possibly can. Our producer is Susie Roth, our technical wizard this morning is Ryan Kampuspos. You've been list- Oh, I got to remind you, popweb.org. Check in with the internet, popweb.org. You've been listening to the Price of Paradise Radio Show. I'm Randy Roth. Aloha.

[01:01:41] Speaker 1: is going to stop in Hawaii, development can move forward, but we want to try to as much as possible preserve these traditional customary rights. There may be situations where these rights are not preserved, but if it is at all feasible to preserve these rights, that is what the permitting agency should do.

[01:02:01] Speaker 2: Okay. Well, there you have it, folks, the Pash case and its implications. The more I talk to people here in Hawaii, the more I believe that this is a a tremendously important issue and regardless of of which side of of the many sides there are to this issue you happen to be on, I encourage you to um to learn as much about it as you possibly can. Our producer is Susie Roth. Our technical wizard this morning is Ryan Kampuspos. You've been list Oh, I got to remind you, popweb.org. Check in with the internet, popweb.org. You've been listening to the Price of Paradise radio show. I'm Randy Roth. Aloha.