In this 1968 Supreme Court of Hawaiʻi Court case (50 Haw. 314 (1968)), there was a shoreline boundary dispute on the island of Molokaʻi. The Court considered the location of the seaward boundaries of a beach front parcel in Kainalu, East Moloka'i with a royal patent that described the property as running "ma ke kai" (along the sea). Ashford, the landowner, utilized a licensed land surveyor employing U.S. geodetic survey techniques to provide expert evidence that in the long-run would characterize the beach as his own private beach. The court certified a kamaʻāina (native born person) of Kainalu as an expert to interpret the meaning of the traditionally known location of the shoreline boundary founded on indigenous place-based knowledge of the boundary with the help of knowledge passed down inter-generationally. The Court stated, “In this jurisdiction, it has long been the rule, based on necessity, to allow reputation evidence by kamaaina witnesses in land disputes."

In this specific case, the kamaʻāina expert explained that they park their canoes above the vegetation line to ensure the canoes remain at high tide. The Court did two important things here: 1) the Court relied upon kamaʻāina expert testimony to make a factual determination; and 2) the Court held that the shoreline is dictated by the upper wash of the waves or vegetation line.

In the 1982 Kalipi v. Hawaiian Trust Co. Supreme Court of Hawaiʻi case (656 P.2d 745 (1982)), William Kalipi owned a kalo field in the ahupua'a of Manawai and an adjoining house lot in the ahupua'a of Ohi'a on the island of Moloka'i. He filed a law suit against the owners of both ahupua'a because the private landowners denied him kuleana gathering rights. He wanted to gather certain items under HRS Sec. 7-1 for subsistence and medicinal purposes.

After reviewing HRS Sec. 7-1, the Supreme Court ruled that in order to assert a right to gather, three conditions must be met: 1) the tenant must physically reside in the ahupua'a from which the item is gathered; 2) the right to gather can only be exercised upon undeveloped lands within the ahupua'a; and 3) the right must be exercised with the purpose of practicing Native Hawaiian customs and traditions. However, this Court decision was expanded upon in regards to cultural gathering rights in the 1992 Pele Defense Fund case.

In the 1992 Pele Defense Fund v. Paty Supreme Court of Hawaiʻi case (837 P.2d 1247 (1992)), Native Hawaiian residents living in the moku (district) of Puna on Hawaiʻi Island claimed gathering rights to certain ahupua'a outside of their physical residence.

The Court held that Native Hawaiians protected by HRS Sec. 1-1 of the HRS and Article XII, Sec. 7 of the Hawaii State Constitution may extend beyond the ahupua'a in which a Native practitioner resides as long as those rights have been traditionally and customarily exercised in that manner.

Note, the 1977 Kobayashi v. Zimring Supreme Court of Hawaiʻi case (566 P.2d 725 (1977)), interpreted the protections of HRS Sec. 1-1 and the Court held that the date by which Hawaiian usage must have been established is fixed at November 25, 1892.

In the 1995 Public Access Shoreline Hawaii v. Hawai'i County Planning Commission, Hawaiʻi Supreme Court case (903 P.2d 1246), the case refers back to Sec. 1-1 of the Constitution and the Doctrine of Custom stating, "the doctrine of custom imposes a servitude on otherwise private property, often allowing public access over private property, such as coastal lands, or preventing the landowner from exercising certain uses of the land"(903 P.2d 1246) . The case involved Nansay Hawaii Inc. who applied to the Hawai'i County Planning Commission for a Shoreline Managment Area (SMA) use permit to build a resort on a 450 acre shoreline area located within the designation of an ahupua'a. Anchialine pond systems throughout the proposed development area are home to ʻōpaeʻula (Halocaridina rubra), gathered for generational fishing practices, among other things.

The court further stated that, "the HPC "disregarded the rules regarding the gathering rights of native Hawaiians and its obligation to preserve and protect those rights". Nansay and the HPC appealed the statement which sent them to the Hawaiian Supreme Court.

4 Main Points From This Case:

1) Hawaiians have unique and distinguishable rights from the general public that qualify them for standing in administrative hearings.

2) Protecting Hawaiian rights is not a taking of private property in Hawaii because not everything is included.

3) The State cannot regulate Native Hawaiian rights out of existence

4) It expanded Kalipi to include protection of Hawaiian Rights on less than fully developed lands.

The Final Decision: In an unanimous decision, the Hawai'i Supreme Court took a step towards preserving the public's access to coastal lands through the use of the doctrine of custom. The court confirmed the public interest in customary uses of lands, recognized the need for balancing the interests of public access with the potential harm to property owners, customary rights are supreme over property rights, and the Court expanded existing Hawaiian law on the extent that traditional gathering rights can be asserted.