Posted by: isa | March 23, 2010

You Have a Right to Beach Access!

All Hawaii’s beaches are public

KAHEA, an alliance of Kanaka Maoli (Native Hawaiian) cultural practitioners, environmental activists and others concerned with protecting customary and traditional rights and our fragile environment believes that easy access to the beach is a basic quality of life issue, guaranteed by Hawaii law…
In 1995, the Hawai’i Supreme Court decided a landmark case that confirmed all of Hawai’i’s beaches are open to the public and cannot be privately owned. (See, Public Access Shoreline Hawai’i (PASH) vs. Hawai’i County Planning Commission). This decision was confirmed most recently by the high court in Diamond vs. Hawai’i (2006).

State law guarantees the public’s right to beach access. Hawai’i Revised Statutes § 115 states that “the purpose of this chapter is to guarantee the right of public access to the sea, shorelines, and inland recreational areas, and transit along the shorelines, and to provide for the acquisition of land for the purchase and maintenance of public rights-of-way and public transit corridors.” This law also clearly states that: “miles of shorelines, waters, and inland recreational areas … are inaccessible to the public due to the absence of public rights-of-way; “the absence of public rights-of-way is a contributing factor to mounting acts of hostility against private shoreline properties and properties bordering inland recreational areas;” “the absence of public access to Hawaii’s shorelines and inland recreational areas constitutes an infringement upon the fundamental right of free movement in public space and access to and use of coastal and inland recreational areas.”

– Hawai’i’s beaches are public. Hawai’i’s Supreme Court has repeatedly upheld the public’s right to go to the beach based on our unique political and cultural history as an independent nation. For generations, people of Hawai’i lived and thrived by the beach. But, today, beach-front properties, military installations, private gates, and trespass signs all stand where paths once led people to the beach. It is up to us to confront the challenges of a growing population, dwindling resources and a long history of poor development planning to find creative ways of ensuring we can all live in harmony.

Kahea further clarifies the cultural importance of beach access for fishing and gathering as well as spiritual practices:

Beach access is cultural practice. Many Hawaiian cultural practitioners actively visit the beach as part of traditional and customary practices, including surfing, gathering, and religious observances. Cultural access is a fundamental right protected by law. But, as access to the beach becomes more difficult, so too will it become more difficult to perpetuate Hawai’i’s unique culture. (KAHEA)

– Incorrect and misleading signage deters regular public use of our beaches. We have all seen them all over our shorelines: “No Trespassing,” “No Beach Access,” “Tow Away Zone,” “Private Property,” “Go Away.” “Bird Sanctuary.”

Fenced off beaches prohibit access by families. Here on Kauai, international beach and hike guidebooks have sometimes identified beaches as clothing optional or by being frequented by specific user groups and have caused the illusion of temporary “bad reputation” beaches. Like Donkey Beach a decade ago. The community use of the new multi-use bike path over the alaloa has cleared up this illusion. Kunia/DonkeyBeach is now Family Friendly again.

Lepeuli/Larsen’s Beach has a similar illusionary bad reputation for people living in the bushes. It’s true; there is one permanent camper – the Cat Man. Taking him to jail has not helped remove him from the property; it only makes him mad.

– Gates don’t ensure safety. Beach-front property owners often justify their gates as a way to deter littering, vandalism, and crime. But gates actually turn the beach into an isolated, dark area more prone to illegal activity because those areas are no longer frequented by families, fishers, surfers, joggers, halau, paddlers, and many other ocean lovers in Hawai’i. Plus, gates prevent first-responders from attending to beach emergencies quickly. This isn’t safer for any of us.

Read the whole Kahea article at http://www.kahea.org/lcr/more.php?id=467_0_8_0_C

State of Hawaii Public Access on Beaches and Shorelines
• The public has a right of access to and along all beaches and shorelines in the State situated below the
“upper reaches of the wash of the waves.” HRS Secs. 115-4 & 115-5.
• Generally, the Counties have the primary authority and duty to develop and maintain public access to
and along the shorelines. HRS Secs. 46-6.5, 115-5 & 115-7.
• The State’s primary role in the shoreline area is to preserve and protect coastal resources within the
conservation district and support public access along and below the shoreline. HRS Chap. 205A.
• In limited circumstances, the State, under its Na Ala Hele Program, is responsible for management
and maintenance of public rights-of-way that are part of the Na Ala Hele trail system of “ancient
trails” that are identified and established public trails with documented historical use and significance.
Unlike other public rights-of ways that may exist by virtue of an easement, the Na Ala Hele trails are
owned by the State and may lead to and from the shoreline and also provide lateral access along
shorelines. HRS Sec. 264-1.
• An inventory of public rights-of-ways should be available at the respective County planning offices
and a list of Na Ala Hele trails are available at DLNR’s Na Ala Hele Division.
• Members of the public seeking the establishment or enforcement of public beach access should seek
the assistance of the appropriate County agencies tasked with that responsibility.
• The State, and DLNR in particular, has been eagerly supportive of County efforts to establish and
maintain public access.
• If private homeowners are obstructing existing public rights-of-way to the shoreline, HRS Sec. 115-9
provides a remedy and up to a $2000 penalty for that kind of situation.
§115-2 Acquisition of lands for public rights-of-way and public transit corridors. When the
provisions of section 46-6.5 are not applicable, the various counties shall purchase land for public rightsof-
way to the shorelines, the sea, and inland recreational areas, and for public transit corridors where
topography is such that safe transit does not exist. [L 1974, c 244, §2; am L 1977, c 164, §4]
[§115-3] Criteria for public rights-of-way. A distance at reasonable intervals taking into consideration
the topography and physical characteristics of the land the public is desirous of reaching is established as
the maximum between public rights-of-way for the purposes of this chapter. [L 1974, c 244, §3]
§115-4 Right of transit along shorelines. The right of access to Hawaii’s shorelines includes the right of
transit along the shorelines. [L 1974, c 244, §4; am L 1991, c 37, §2]
[§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]
[§115-7] State and county co-sponsorship of programs. The department of land and natural resources
shall enter into agreements with the council of any county providing for the acquisition of public rightsof-
way and public transit corridors pursuant to this chapter; provided that the county shall match the funds
which have been appropriated by the legislature. The development and maintenance of the rights-of-way
and public transit corridors shall be the responsibility of the county. [L 1974, c 244, §7]
[§115-9] Obstructing access to public property; penalty. (a) A person commits the offense of
obstructing access to public property if the person, by action or by having installed a physical
impediment, intentionally prevents a member of the public from traversing:
(1) A public right-of-way;
(2) A transit area; or
(3) A public transit corridor;
and thereby obstructs access to the sea, the shoreline, or any inland public recreational area.
(b) Physical impediments that may prevent traversing include but are not limited to the following:
(1) Gates;
(2) Fences;
(3) Walls;
(4) Constructed barriers;
(5) Rubbish;
(6) Security guards; and
(7) Guard dogs or animals.
(c) Obstructing access to public property is a misdemeanor.
(d) Minimum fines for violation under this section shall be as follows:
(1) $1,000 for a second conviction; and
(2) $2,000 for any conviction after a second conviction.
(e) As used in this section:
“Person” means a natural person or a legal entity.
“Public recreational area” means public lands or bodies of water opened to the public for recreational use.
[L 2004, c 169, §2]
[§46-6.5] Public access. (a) Each county shall adopt ordinances which shall require a subdivider or
developer, as a condition precedent to final approval of a subdivision, in cases where public access is not
already provided, to dedicate land for public access by right-of-way or easement for pedestrian travel
from a public highway or public streets to the land below the high-water mark on any coastal shoreline,
and to dedicate land for public access by right of way from a public highway to areas in the mountains
where there are existing facilities for hiking, hunting, fruit-picking, ti-leaf sliding, and other recreational
purposes, and where there are existing mountain trails.
(b) These ordinances shall be adopted within one year of May 22, 1973.
(c) Upon the dedication of land for a right-of-way, as required by this section and acceptance by
the county, the county concerned shall thereafter assume the cost of improvements for and the
maintenance of the right-of-way, and the subdivider shall accordingly be relieved from such costs.
(d) For the purposes of this section, “subdivision” means any land which is divided or is proposed
to be divided for the purpose of disposition into six or more lots, parcels, units, or interests and also
includes any land whether contiguous or not, if six or more lots are offered as part of a common
promotional plan of advertising and sale.
(e) The right-of-way shall be clearly designated on the final map of the subdivision or
development.
(f) This section shall apply to the plan of any subdivision or development which has not been
approved by the respective counties prior to July 1, 1973. [L 1973, c 143, §2]

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