Monday, July 23, 2018

excerpted from: Ian H. Hlawati, Loko I'a: a Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm , 24 University of Hawaii Law Review 657-692, 657- (Summer, 2002) (257 Footnotes)

Ancient Hawaiian fishponds change modern peoples' lives. Fishfarmers, preservationists, and chance visitors continue to attest to an inherent magnetism of fishponds. And yet, Hawai'i developers and property owners often curse the fishpond and its attendant burden on coastal development. Restorationists, likewise, have come to fulminate, not about the fishponds themselves, but about the federal and state permitting process required to restore a fishpond to an operational state. Moreover, private owners of fishponds may never feel completely secure in their property interest on these unique coastline enclosures. Considering that a 1990 survey estimated that there were 488 fishponds in the State of Hawai'i, the caselaw on fishponds is remarkably sparse. The absence of caselaw has created legal uncertainties, and all persons with an interest in fishponds should be prepared for more rapid legal developments in this area.

Competing personal and governmental interests come to bear on the usage, development, or destruction of ancient Hawaiian fishponds. The Hawai'i courts have become accustomed to the valuation of disparate social and political goals, including those that fall outside of the traditional Western paradigm. As the State's population burgeons upon finite land resources, the resultant casualty is often the destruction of historic Hawaiian sites.

In the area of ancient Hawaiian fishponds, a renaissance movement has developed to restore the fishponds to their operational states. Fully operational fishponds enjoy certain benefits and protections that more degraded fishponds do not, including in particular, private ownership. Private ownership of fishponds, which average fifteen acres but are sometimes as large as forty-six acres, has obvious effects on the public's access to the coastline. The resultant coastal ownership claims have brought shifting support and opposition by both the state and federal governments and the public to such unfettered private control of Hawai'i's natural resources. The support for fishpond restoration has its basis, most prominently, in the numerous and profound benefits to Native Hawaiians. Likewise, for those who may have a property or personal interest in a fishpond without a concomitant native interest, the law as itrelates to fishponds can have dramatic personal and fiscal impacts.

The restoration process has only recently become the subject of litigation, whereas previous disputes relating to fishponds involved, almost exclusively, conflicts over real property interests. Recently, Wright v. Dunbar, a 2001 federal case involving a Moloka'i property owner's restoration efforts, brought the modern controversies of fishpond restoration to light. Far from the traditional common law, the parties in Dunbar litigated claims stemming from the complexities of the permitting required to restore a fishpond to violations of federal environmental regulations. Dunbar is a compelling legal story of a private restorer pitted against a vocal neighbor opposed to such restoration and is indicative of the court's struggle to balance unique fishpond interests within the confines of the Western paradigm.

Because there are remnants of over 400 historic fishponds in Hawai'i, and the majority of the property titles were redistributed in the State after the Great Mahele of 1848, the status and ownership of ancient Hawaiian fishponds remain a quiet, but potentially complex and dense area of law. This paper attempts to use a lineage of Hawai'i caselaw as a medium to catalogue and anticipate legal issues as they may arise in relation to the restoration of the ancient Hawaiian fishpond.

Part II introduces a brief cultural and early legal history of ancient Hawaiian fishponds and emphasizes that restoration embodies Native Hawaiian tradition and may be a protected cultural right.

Part III explores the historical and modern legal developments relating to fishponds and restoration.

Part III further uses the most recent litigation in Wright v. Dunbar to illustrate the particularly modern legal difficulties of restoration. In conclusion, this paper stresses the importance of attempting to adapt restoration to the Western legal paradigm and illustrates that mindfulness of the current state of the law can result in personal and legal success.

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