▪ Are Constitutional Property Rights "Cultural Practices" That Should be Considered?

We all know that in Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held:

Our 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.

The court also noted that "western concepts" of property include a certain bundle of rights:

The western doctrine of "property" has traditionally implied certain rights. Among these are the right to the use of the property, the right to exclude others[,] and the right to transfer the property with the consent of the "owner".

In 2000, the Hawaii Legislature amended the state’s environmental assessment/impact statement law, Haw. Rev. Stat. ch. 343 to require examination of cultural practices as well as environmental policies, economic welfare, and social welfare:

"Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State’s environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

Haw. Rev. Stat. § 343-2.

In practice, the cultural impact statement required by this section has focused on the impacts of development on the traditional and customary native Hawaiian rights, including issues of burials. However, there is nothing in chapter 343 that further defines what is or is not a "cultural practice," or limits it to the above. Indeed, the Hawaii Supreme Court has expressly not limited the term "cultural resources," noting that native Hawaiian rights are but one subset of the term. Ka Paakai O Ka Aina v. Land Use Comm’n, 94 Haw. 31, 7 P.3d 106 (2000). This leaves open the possibility that the practices of other cultures must be analyzed (and presumably respected by the process and the result).

My question: are western concepts and "traditions" of property such as exclusive use, alienability, reasonable use, and not allowing the "dead hand" to control land use "cultural practices" that must be considered during the EA/EIS process under chapter 343?

It might be argued that those notions are already well-considered, but proof to support that argument often eludes me, and rarely do I see discussion or a hard consideration of the property owner’s constitutional right to make reasonable use of her property. As the US Supreme Court reminded us:

the right to build on one’s own property - even though its exercise can be subjected to legitimate permitting requirements - cannot remotely be described as a "governmental benefit."

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).