A most interesting case has been briefed and is awating argument in the Hawaii Intermediate Court of Appeals. But first, some background.
In Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held “[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.” Among those “western concepts” was the fee simple absolute under which an owner has the right to exclude the public. In PASH, the court concluded that the
legitimate and reasonable practice of customary and traditional rights” by native Hawaiians (small “n”)