PASH Bash: U. Hawaii Law Review Symposium - "25 Years of PASH" (Feb. 5, 2021)
by Robert Thomas, Inverse Condemnation, January 19, 2021
Mention the term "PASH" to any dirt lawyer in the 50th State, and they'll nod in understanding. It's an 808 shibboleth -- a kind of local property password -- that signals that you've been around the block and know your stuff.
On one hand, it is simply an acronym for Public Access Shoreline Hawaii, the plaintiff/petitioner in the (in)famous case Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm'n, 903 P.2d 1246 (Haw. 1995). On the other, however, it has evolved into shorthand for a number of things: from the technically accurate - native Hawaiian customary and traditional rights and practices under the Hawaii Constitution ("I was chasing a pua'a on private property, so I cannot be convicted of trespass because I was exercising my PASH rights"); to generically and cheekily - the ability to access the beach and shoreline ("Surf's up today, let's go practice some PASH rights instead of working!"); and with irony - judicial activism ("The Supreme Court sure PASH'ed that case!").
For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[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 Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)
Soon after PASH, the Hawaii Supreme Court held that this right only applied on less-than-developed land. Why, the court has never really told us. After all, the right as set out in the text of the Hawaii Constitution doesn't distinguish between developed and undeveloped land, and as far as we can tell, neither did Hawaiian custom and practice. Maybe the court realized that the practical implications of a strict application of PASH in the absence of such a judicially-created limitation were enormous. We're not sure.
Who'd have thought that it has been a quarter century since the decision came out? (Probably not the editors of the University of Hawaii Law Review, many of whom, we'd imagine, were keiki at the time; but we digress.) But it has. But no matter, PASH rights have been a part of the conversation for more than two decades.
In February, the Law Review is putting together a retrospective and is devoting an issue of the upcoming volume to a discussion of the PASH case and how the last 25 years have gone.
We're going to be a part of the (online) Symposium on February 5, 2021, speaking about "Takings and the Changing Coastal Environment" (11am - 1pm Hawaii Time). We'll be joined by Colin Lee (a UH student who has authored an intriguing piece on PASH), Sam Lemmo (Admistrator of the State of Hawaii Office of Conservation and Coastal Lands), and Bill Wynhoff (Supervising Deputy AG, who in our opinion, is the most knowledgeable career public-service lawyer on these issues). Our discussion is sure to be lively, and will be moderated by UH lawprof David Callies.
Register for the entire program here (no cost). Our Damon Key colleague Mark M. Murakami is presenting on "The Proper Role of the Court: Restoring Justice Through the Public Trust Doctrine." The entire program is worth attending.
We hope you sign up, whether you are an old hand at PASH or a newcomer.
PDF: U. Haw. L. Rev. Symposium: 25 Years of PASH (Feb. 5, 2021)