Ocean access in Hawaii? What are the facts?

[Rob Tucker]

One of our members, Obie, has made a statement about ocean access in Hawaii and I thought I'd invite some research into the facts on the subject.

Obie's statement was:

All of you who think that beach access is guaranteed must be from California or some other state. Hawaii has no such law.

Can anyone confirm or deny?

[Bullwinkle]

Never been one to avoid an exploration of the facts, or to put my foot in it......

from the Surfrider foundation website:

HAWAII
According to the Hawaii Coastal Management Program (HCMP), all beaches in Hawaii are publicly owned.

Hawaii's 1997 CZM Assessment reports that on August 31, 1995, the Supreme Court of Hawaii issued its decision in Public Access Shoreline Hawaii v. County of Hawaii County Planning Commission, commonly known as the "P.A.S.H. Decision." The litigation arose when the Planning Commission denied the plaintiffs a contested case hearing on whether they had traditional and customary rights to access and use of certain anchialine pools situated within the developer's property. At its core, the decision established that the plaintiffs had standing to present evidence before the Planning Commission with respect to their rights to exercise traditional and customary practices.

Hawaii's 1997 CZM Assessment reports that public-private partnerships and private land conservation efforts exist on a small scale in Hawaii, but in recent years they have been increasing. Frequently known as the "land trust movement," private conservation organizations are acquiring greenways, open space, community gardens, natural habitats, trails, and other lands with high "public" values. Projects like the acquisition of the shoreline areas of the Marks' Estate on Windward Oahu by the City and County of Honolulu with the assistance of The Trust for Public Land, illustrate the potential for these activities. In addition to the well-established The Nature Conservancy - Hawaii, other national organizations such as The Trust for Public Land and Ducks Unlimited are also becoming more active in Hawaii. Local organizations such as Maui Open Space Trust, Kauai Public Land Trust, and Protect Kohanaiki Ohana, are also becoming more active. More recently, the North Shore Community Land Trust, working with many partners including the Trust for Public Land, Surfrider Foundation Oahu Chapter, Surfrider Japan, the state and federal governments and the military, successfully concluded the Campaign for Pupukea-Paumalu, purchasing and protecting the 1,129-acre Pupukea Paumalu coastal bluff that overlooks the world's most famous surfing breaks on the North Shore.

Two other good sources of beach access information are beachacesshawaii.org and Surfrider Foundation's Oahu Chapter. Their website has a good summary of Hawaii beach access laws and a collection of photos of blocked beach accesses.

Hawaii has approximately 319 total public-access sites for 360 miles of coastline, which is on average one access point every 1.1 miles. In addition, the State's public access is high quality. Maui has 24 beach parks, and most have parking with paved access and restrooms. Oahu has seven regional parks and 61 local beach/shoreline parks. Kauai has 18 beach parks, and Molokai has six beach parks. In total, Hawaii has 116 beach parks, which is 36% of all the beach access on the islands.

[Obie]

I should have been more specific.

Here is the actual statute.

http://co.hawaii.hi.us/countycode/chapter34.pdf

We do have a public access,however the roads from the Red Road to the tide pools are private.We pay to maintain those roads and we could put up a gate at the Red Road and require non residents to walk from that point.

How many people do you think would walk that far?

We would never do that,but we could .

[Obie]

Rob

Another deal is the earthquake in 1975 and the subsidence it caused.All of the tidepools at Kapoho are on private property.

There were houses on them at one time and most of these people are still paying property taxes.

Most of the tidepools were never public beach or land.

[Bob Orts]

All beaches and shorelines to the highest water mark is public property under both State and individual County laws. (Note the court overruled the vegetation confusion). However, that does not mean the entire land comprising a beach is public; only to the standard set by the Hawaii Supreme Court. So a resort can have a beach and restrict access to the portion on the beach on their private property above the high water mark.

Access to that public land is not guaranteed under State or individual County laws. There's a complex set of laws and regulations concerning public access and it does not provide absolute access especially when private property rights are involved. Access depends on a lot of factors. Both government regulations and a whole heaping public/private cooperation is also involved.

But if the question is: are the shorelines public? The answwer is YES! If the question is: is public access guaranteed? The answer is no. As for "Beaches", Hawaii laws deals with public versus private property be it a sandy piece of land, rocks, tidal pools, marsh, etc.

Basically the shores may be public, but access may not be available via land.

[JWFITZ]

The state only controls the land to the high tide mark. The rest is federal and treaty bound territories, some may be under trust by state authorities but not ownership. Nonetheless, good luck with the lawsuit, and let us know what you find out in 28 or so years.

[JWFITZ]

Bob there beat me to the punch by a few seconds. The fact is these rights have been severely eroded over the last decade and it's going to be a hard case to make.

[PaulW]

From http://www.capitol.hawaii.gov/hrscurrent...5-0005.htm :

[§115-5] Transit area and public transit corridor defined. The right of transit along the shoreline exists below the private property line which is defined as being along the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the debris left by the wash of waves. However, in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit for the public along the shoreline below the private property lines, the counties by condemnation shall establish along the makai boundaries of the property lines public transit corridors which shall be not less than six feet wide. [L 1974, c 244, §5]

[John S. Rabi]

All beaches, sandy or rocky, are public to the high tide mark (but it doesn't mean access to them is public too.) From there on it's private property. After the Supreme Court ruled in the PASH case, some property owners have to provide access as an easement, even condos. I still can't figure out why Kona Makai has a public access to the ocean and Alii Villas next door doesn't, so don't ask me what the rule is. However, you are free to walk around the island below the high tide mark.[]


Aloha,
John S. Rabi, GM,PB,ABR,CRB,CM,FHS
808.989.1314
http://www.JohnRabi.com
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[Dave Smith]

quote:

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Originally posted by Obie

All of the tidepools at Kapoho are on private property.

There were houses on them at one time and most of these people are still paying property taxes.

Most of the tidepools were never public beach or land.

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You mean some of the tidepools, right? I'm sure you're aware of the Waiopae Tidepools Marine Life Conservation District. If the name doesn't say it all, here's a description:

http://hawaii.gov/dlnr/dar/coral/mlcd_waiopae.html