A ruling from the Intermediate Court of Appeals over public beach access takes the state Board of Land and Natural Resources to task over upholding public trust law.
In 2018, Honolulu attorney David Frankel sued over violations at Kahala Hotel and Resort. The Intermediate Court of Appeals issued an opinion Wednesday.
Frankel said that he filed the lawsuit because the state Department of Land and Natural Resources let the hotel occupy and exclude the public from land that was set aside as a public beach.
"Intermediate Court of Appeals issues its opinion which tells that the Board of Land of Natural Resources essentially breached its public trust duties when it authorized the Kahala Hotel to make exclusive use of a portion of land designated to be used as public beach," he said.
Frankel said that, since 2017, the hotel's improper use of public land has decreased. He also said that now there are small signs at the resort that mark the property line between the hotel's land and public land.
"I think there was an effort by the hotel to exclude the public and make the resort more private, more exclusive, what have you, and to keep the public out and that's just wrong. This is public land," he said.
"It's important because it's the beach, and our beaches are special. Unlike some places on the mainland, beaches here are the public's. They can't be privatized," he said.
Frankel said that if DLNR plans to authorize a private entity to exclude the public from certain land, it has to go through an analysis.
"It's a pretty sophisticated analysis, where you look at alternatives, where you begin with the presumption the public should have the use of the land. They're gonna have to justify decisions like that," he said.
He pointed to Act 227, which prohibits presetting commercial equipment on certain beaches unless the customer is present. However, he said the law doesn't ban presetting on Kauaʻi and Hawaiʻi Island.
"In theory then, the state should not be authorizing any hotel to preset anywhere given, first of all, the law passed by the Legislature, but secondly, this decision, which will restrict that from happening now also on the Big Island and Kauaʻi as well," he said.
The state Attorney General's office, along with the DLNR, is reviewing the decision and considering its next step. It declined to comment as the case is being sent back to circuit court.
Editor's note: Kahala Resorts is an underwriter of HPR.
This interview aired on The Conversation on Jan. 30, 2025. The Conversation airs weekdays at 11 a.m. on HPR-1.
