Saturday, August 17, 2013

No one Likes a Private Beach

The first time I went to Long Island, I wanted to swim in the Atlantic Ocean. In Long Beach, N.Y., access to the ocean is cut off by a great wooden boardwalk. To get to the water, you need to cross the boardwalk and just before hitting the beach an official inspects a beach pass allowing access. A government-issued pass for the beach!? This was a wholly alien concept for a teenager from Maui.
Turns out, there's something even more troubling than government-controlled access. In places like Massachusetts and North Carolina, private owners can section off their portion of the beach, restrict access, and keep the entire embankment of sand and surf off-limits. If a country club or a hotel tried that back home, I thought, surely there'd be an open revolt. Lucky we live Hawaii, yeah?
It's more than just luck. Hawaii has no private beaches and, with exceptions such as Hanauma Bay on Oahu, the government does not charge money to get onto the beach.
But it wasn't always this way. In his memoir, former Gov. Ben Cayetano recalled the summers of his childhood when he and his friends would ride their bikes from their working-class and predominantly nonwhite neighborhood in Kalihi all the way to the sandy beaches of Kahala at the other end of Honolulu. There, the white landowners would come out from their houses and try to chase them out of the water and off the beach. When that didn't work, they'd call the police, and even though the kids weren't breaking any laws, the officers would do it for them.
When Cayetano shared this story with former Hawaii Supreme Court Chief Justice William Richardson, Richardson recalled his own experiences as a boy when he would watch hotel guests dancing in Waikiki while he was relegated to stand at the water's edge. Richardson told Cayetano that back then the hotels treated the beach like their own private property.
The change to the open beaches we have today unwittingly began when Clint Ashford - a well-known attorney and one of the founders of the equally well-known law firm Ashford and Wriston - applied to the Land Court to register beachfront property on Molokai. The titles of the property were issued by the kingdom in 1866 and were originally in the Hawaiian language. His case turned on the words "ma ke kai," which translates to "high water mark." Ashford claimed that the ma ke kai must be determined only by expert surveyors and their calculations.
The state, however, argued that the high water mark could be proved through witnesses familiar with the land, custom, usage and practice. Based on that evidence, the ma ke kai went all the way up to the vegetation line - about 30 feet higher than what Ashford's experts had determined.
In 1968, the Hawaii Supreme Court rejected Ashford's arguments and held that the land from the water's edge to the vegetation line was the "high water mark." Richardson wrote the opinion.
A few years later, Richardson extended this concept even further. In 1974, the court declared that the lands from the shore to the "high water mark" as determined from Ashford's case belonged to the state and were held in the public trust. Private beaches in the islands were pretty much pau.
For years now, blue signs all over the state alert everyone to public rights of way and access to the water and beaches. We can swim, fish and snorkel just about anyplace our legs can take us - even in posh places like Kahala or Kapalua.
Maybe that's why last month's story about a new gate in Napili cutting off access to a popular beach spot has struck a nerve. Disabled beachgoers, the elderly, and those with small children have lamented because this was one of the few easy places for vacationers and residents to get to the water. The owners, on the other hand, told the newspaper that their effort to restrict access is "totally legal."
Similarly, a group of beachgoers and Native Hawaiians have sued the Four Seasons in Wailea for preventing normal access and enjoyment of the beach in front of its resort. The group has argued that by putting up rentals, exclusive chaise lounge chairs and other bits of furniture on the beach, the hotel has effectively created a private beach. (Since then, however, the Four Seasons has dismantled the rentals.)
Enjoying the sand and surf is part of living in Hawaii. It's not for sale, and beachfront owners who are used to exclusivity and their own private paradise are sometimes dismayed at the law here in Hawaii. Yes, we can fish next to beachfront mansions in Wailea or bodysurf with luxury vacationers. A private beach is more than a strange and foreign thing for local folks. It's unlawful.
- June 14, 2013

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