Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 5, 1 May 1996 — U.S. Supreme Court refuses to hear Nansay appeal [ARTICLE]

U.S. Supreme Court refuses to hear Nansay appeal

Hawanan gathering rights affirmed by Court decision

The U.S. Supreme Court has refused to hear an appeal of a landmark Hawai'i Supreme court decision on Hawaiian gathering rights. Last year the Hawai'i court recognized the unique nature of property rights in Hawai'i and argued that Hawaiians have access rights to privately held lands for traditional and customary property. The Hawai'i Supreme Court opinion had its immediate origins in a 1990 decision by the Hawai'i County Planning Commission (HPC) to deny Public Access Shoreline Hawai'i (PASH) and Angel Pilago standing to participate in a contested case hearing on an application by Nansay Hawai'i ine. for a Special Management Area (SMA) use permit. Nansay wanted approval to develop a community complex in the Kohanaiki ahupua'a near the Kona

airport on the Big Island. PASH and Pilago opposed the plan on the grounds that the development would destroy the freshwater pools in the area that Hawaiians had traditionally used for fishing. The Hawai'i court opinion, citing decisions from numerous past court cases and 150 years of constitutional language, concluded that "to the extent feasible" the HPC must "preserve and protect native Hawaiian rights when issuing an SMA permit." Nansay appealed the decision saying that the decision was unconstitutional because it deprived the developer of its right to use the property. However, the U.S. Supreme Court refused to hear the case. Nansay must now decide whether it wants to retum to the planning commission to seek a permit.