Attorney Gregory Kugle, a partner with Damon Key Leong Kupchak & Hastert, joins producer/host Coralie Chun Matayoshi to discuss public rights of access to and along our beaches.
Who really owns Hawaii’s beaches?
The concept of free and open access to beaches is not universal and is of fairly modern creation. Different states have different laws regarding public access to rivers, lakes, and beaches. Hawaii’s most recent Supreme Court cases have held that the boundary between private property and public beaches should be as far inland as possible, maximizing the amount of beach and coastline available to the public.
What are the public’s rights to access beaches and oceans?
The question has two components: access along the beach, and access to the beach. You have the absolute right to recreate along the beach and traverse across it parallel to the ocean, at least up to the vegetation line. You also have the right to enter and exit the ocean. Access to the beach is a bit more complicated. You can traverse across public property like a state or county beach park or public roadway to get to the beach. However, it was not until the 1970’s when state laws allowed the counties to require public access to the coastline as a zoning or permitting condition. So for newer developments, or redevelopment of coastal lands, county or state agencies may require the dedication of public access rights of way to the coastline, and public parking spaces for beach users could be required for larger developments. The problem is that many of Oahu’s residential communities and resort areas were developed before these laws were enacted, so a number of coastal communities were developed with private, not public, rights of way to the beach, or without any beach access at all (e.g. Lanikai, Portlock, Niu Valley). Some property owners leave rights of way open for public use, while others erect fences or locked gates which is within the owner’s prerogative.
What can be done to increase public access to beaches?
If there is sufficient public interest in either opening private shoreline access paths or creating new ones, a state law authorizes the counties to acquire private property for public use to access coastal recreational resources. To do so, the counties are authorized to use the power of eminent domain to condemn the private right of way and convert it to public access. However, this requires the county to pay “just compensation” (fair market value) to the owner, which could be expensive.
Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.
“What’s the Law” is sponsored by Hosoda Law & Just Well Law, representing families who lived on the Navy water line on O’ahu between May and November 2021, seeking accountability and financial recovery from landlords and the United States. To learn more visit well.law/redhill.
