Scholarship Update

Native Hawaiian Law Treatise Cited by Hawai‘i Supreme Court

Susan K. Serrano, Director of Research and Scholarship

One of Ka Huli Ao’s goals is to advance research and scholarship that embraces history, culture, and present-day context to promote social justice for Native Hawaiians and other Pacific and Indigenous Peoples.  We have sought to do so through the publication and dissemination of Native Hawaiian Law: A Treatise (MacKenzie, Serrano and Sproat, eds.).

In August 2017, the Traditional and Customary Access and Gathering Rights chapter by David M. Forman & Susan K. Serrano in Native Hawaiian Law: A Treatise, was cited by the Hawai‘i Supreme Court in Gold Coast Neighborhood Ass’n v. State, 140 Haw. 437 (2017).  The chapter was cited for the proposition that “[a]ccess along Hawaiian trails may be protected where there has been an implied dedication of a public right-of-way across private land” in a section regarding the continued recognition of common law implied dedication as a method of transferring interests in property to the State.

In Gold Coast, the Supreme Court held, among other things, that the circuit court and the Intermediate Court of Appeals properly determined that “the State obtained an easement over and across the Seawall by common law implied dedication[,]” but that the lower courts “erred in concluding that the State owns the Seawall and the real property under the Seawall.”  Instead, according to the Supreme Court, “ownership of the Seawall was not transferred to the State by virtue of surrender.”  Thus, the court rejected the Gold Coast Neighborhood Association’s request that the State repair seawalls built by private parties to protect private property from erosion and wave damage.

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