## Facts

- A developer, Nansay Hawai‘i, Inc., sought approval for a resort complex on Hawai‘i Island within a Special Management Area (SMA) and applied to the Hawai‘i County Planning Commission (HPC) for an SMA use permit.
- Public Access Shoreline Hawaii (PASH), a public-interest membership organization, and Angel Pilago opposed the project, asserting it would adversely affect traditional and customary Native Hawaiian practices in the project area.
- PASH and Pilago requested to participate as parties in a “contested case” hearing before the HPC concerning the permit application.
- The HPC denied their request, concluding their interests were not distinguishable from the general public and therefore insufficient to support party participation.
- PASH and Pilago sought judicial review; the circuit court held they were entitled to participate and that traditional and customary Native Hawaiian rights required consideration in the permitting process.
- The Intermediate Court of Appeals largely affirmed, and the Hawai‘i Supreme Court granted certiorari to review the denial of contested case participation and the related constitutional and statutory questions.

## Issues

1. Whether PASH and Pilago were entitled to participate as parties in a contested case hearing on the developer’s SMA permit application.
2. Whether, and to what extent, state and county permitting agencies must preserve and protect traditional and customary Native Hawaiian rights when deciding SMA permits.
3. How legally protected customary rights interact with a developer’s private property and development interests in land subject to SMA regulation.

## Decision

- The Hawai‘i Supreme Court affirmed the determination that PASH and Pilago were entitled to contested case participation as parties.
- The court held that the Hawai‘i Constitution and implementing statutes impose affirmative obligations on agencies, including county planning commissions, to preserve and protect traditional and customary Native Hawaiian rights during SMA permitting.
- The court rejected the view that the developer’s fee ownership and development expectations were absolute, explaining that development is qualified by preexisting customary rights that may constrain permitted uses.
- The case was remanded for further proceedings consistent with these requirements, including participation by PASH and Pilago and an evaluation of impacts on customary practices.

## Legal Principles

- Administrative standing and party participation may be supported by distinct, legally cognizable interests tied to constitutional and statutory protections, including traditional and customary Native Hawaiian practices, even where the dispute also implicates general public concerns.
- In SMA permitting, agencies have an affirmative duty to identify customary and traditional rights potentially affected by a proposed project and to evaluate adverse effects on those rights.
- Agencies must preserve and protect customary rights through permit conditions, project modification, or denial when necessary to satisfy constitutional and statutory mandates.
- Customary and traditional Native Hawaiian rights recognized under state law can run with the land and limit later development; private property rights are qualified by such rights, which must nonetheless be exercised reasonably under modern conditions.

## Conclusion

The Hawai‘i Supreme Court held that opponents asserting impacts to traditional and customary Native Hawaiian practices could participate as parties in contested SMA proceedings and that permitting agencies must affirmatively consider and protect those practices, with development approvals constrained by preexisting customary rights.


Pub. Access Shoreline Haw. v. Haw. Cnty. Planning Comm’n, 79 Haw. 425, 903 P.2d 1246 (1995)