Robert Thomas
Robert Thomas

BY ROBERT THOMAS – There’s a feature story in the March 11 Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short version: the restoration groups assert that layers of government regulations which result in the need to obtain a slew of permits and permissions are “such a deterrent” to their ability to repair and restore the remaining fishponds.

For one Maui fishpond, these regulations include Corps of Engineers approvals, a State Department of Health water quality permit, a State Department of Land and Natural Resources Conservation District Use permit, a State DLNR shoreline certification, a Special Management Area use permit from the County of Maui, a State survey, and a marine archaeological study. It’s expensive, time consuming, and discouraging, the groups claim.

Welcome to my world.

We’re not sure why they think they should be exempt from these regulations, although their complaints make sense: “We need to grow food now. … Government needs to figure out how to make it a one-stop shop,” the executive director of the group is quoted as saying.

She said government officials need to reorder priorities to enable the restoration of environmentally friendly fishponds.

“I think it’s obvious rules and regulations need to change,” she said. “I think our government needs to put the environment first.”

Yes, but there’s the rub, isn’t it? Who is to say that what you claim is “green” really isn’t somehow affecting the environment, and needs layers of government review to insure it is not detrimental?  The precautionary principle at work: because, you know, you never know. Especially when you are dealing with shorelines, public lands, and public trust resources.

And, under the Hawaii shoreline statutes, there really is no such thing as an absolutely exempt activity, because even those activites that are technically categorically exempt because they will likely have little or no significant effect (building a single family home or an inexpensive project, for example) are really not exempt, since a claim that their “cumulative impact” might cause environmental harm will trigger the need for government reviews. See here and scroll down to (17) if you doubt us.

Thus, even purportedly green activity could be “development” after all, even if it involves a native Hawaiian fishpond.

Sidebar: in the old days, some of these fishponds were built by the local alii “taxing” the entire populace of a district, the “tax” consisting of the command that every man, woman, and child show up at the site on a particular day with the rocks used for construction. The builders of these structures didn’t need permits, surveys, or certifications. In those days, it really was good to be the king, but maybe not so good to be everyone else.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.