I practice lāʻau lapaʻau and for generations my ʻohana has gathered plants on a particular property. The landowners applied for a permit to develop the property. Is there anything I can do?
By Ashley K. Obrey, NHLC Legal Administrative Director and Staff Attorney
Development on properties historically used for traditional and customary Native Hawaiian practices can cause great harm to cultural practitioners and all who benefit from their cultural practice. However, there is a process you can participate in to voice your concerns and ask for a permit decision that protects your traditional and customary rights.
Each island has a planning commission that reviews permit requests for private development. You can request to participate in the review by filing a petition to Intervene. Call the planning commission to ask the deadline for filing this petition. If you file the petition by the deadline and they grant the petition, you can share your concerns at a proceeding called a “contested case hearing” before the commission decides whether to issue the permit. The commission or an assigned hearing officer will oversee the hearing.
At the hearing, you can argue against the permit on the grounds that the development will negatively impact your traditional gathering rights. Before approving a private development permit, the commission must ensure that Native Hawaiian traditional and customary practices will not be adversely impacted or impaired.
The commission must first determine what traditional and customary practices are exercised on the property. Next, the commission must examine how the practices will be impacted or impaired by the proposed development. If it is determined that Native Hawaiian traditional and customary practices will be affected, the commission must identify steps to protect those practices before it can allow the development.
At the hearing, you can explain your ʻohana’s lāʻau lapaʻau historical gathering practices on the property and how development will affect those practices. You can support your positions with evidence like documents, photos, written statements, as well as with witnesses that you may call to testify about your ʻohana’s traditional practices.
The landowners will also be able to make their case for why the development will not impact your ʻohana’s practices and traditional and customary rights. Like you, they may present evidence and witnesses. They may also ask your witnesses questions and object to evidence you submitted. You can ask their witnesses questions and object to evidence they present. Occasionally, the commission or officer overseeing the hearing may also ask questions of the witnesses.
The hearing could last for less than a day or it could extend across multiple days over months. The length of the hearing depends on the complexity of the case, including the number of witnesses and volume of other evidence presented.
When the hearing concludes, the hearing officer, if one was assigned, will make recommendations about whether the permit should be approved, and if approved, what steps should be taken to protect your ʻohana’s rights. The commission decides whether and how the permit should be issued. If you took part as a party in the hearing and disagree with the outcome, you can appeal to a state court for review of the hearing process and the commission’s decision. A thorough effort in the hearing is important because on appeal the state court will rely on the evidence presented at the hearing.
This is a brief overview of the contested case hearing process. There are many legal rules controlling the hearing process and how evidence is presented. Though not required, an attorney can be a major help in successfully navigating the hearing process and rules, so that you can put your best case forward.
E Nīnau iā NHLC provides general information about the law, not legal advice. You can contact NHLC about your legal needs by calling NHLC’s office at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.