ke kumu - Fall/Winter 2021

FALL/WINTER

2021

ke ku mu

A P U B L I C A T I O N F O R T H E F R I E N D S , F A M I LY, A N D C L I E N T S O F C A D E S S C H U T T E L L P

VACCINE MANDATES | THE UNIFORM TRUST CODE | THE BANKRUPTCY CODE | SHORELINE PUBLIC ACCESS

MEET OUR NEWEST OF COUNSEL

Geoffrey T. Mukae Of Counsel gmukae@cades.com (808) 521-9335

Cades Schutte LLP is proud to announce that Geoffrey T. Mukae has joined the firm’s Honolulu office. Geoff has over 20 years of experience as a corporate and business attorney in Hawai‘i, New York City, Silicon Valley, and Tokyo.

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Contents 4

Welcome!

Ho‘āla, Pōhai Nu‘uhiwa Campbell

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Contributors Learn about our authors’ practices and contacting them

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Can Employers in Hawai‘i Require their Employees to Receive the COVID-19 Vaccine?

Mallory T. Martin

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Hawai‘i Adopts New Uniform Trust Code: What is it and what does it mean for you?

Rhonda L. Griswold and Summer G. Shelverton

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Commercial Landlords and Tenants: Take Note of these Changes to the Bankruptcy Code Trisha H.S.T. Akagi

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PASH: No One Legacy for Hawai‘i Land Use and Shoreline Public Access Roy A. Vitousek III and Ellen R. Ashford

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ke kumu

A P U B L I C A T I O N F O R T H E F R I E N D S , F A M I LY, A N D C L I E N T S O F C A D E S S C H U T T E L L P

FALL/WINTER

2021

Management Committee: Amanda M. Jones Nathan T. Okubo Ryan M. Wilson Cades Schutte Building 1000 Bishop Street, Suite 1200 Honolulu, Hawai‘i 96813 The contents of this newsletter should not be construed as legal advice on any specific fact or circumstance. Its content was prepared by Cades Schutte LLP. It was designed for general information purposes only. Your receipt of such information neither creates an attorneyclient relationship with any Cades Schutte LLP attorney, nor a business relationship with any of its administrators. You should not act or rely on any of the information contained herein without seeking professional legal counsel. Prior results or outcomes referred to in these materials do not in any way suggest or guarantee a similar result in other matters.

© 2021 Cades Schutte LLP. All Rights Reserved.

The comments and opinions expressed in this publication do not necessarily represent those of Cades Schutte LLP or the attorneys or staff of Cades Schutte LLP. A CADES SCHUTTE PUBLICATION | KE KUMU

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WELCOME!

HO‘ĀLA

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‌‘āla means to awaken, rise up, renew, and o restore. During this unprecedented time, we have continuously found the need to rise to new challenges and renew our practices in order to provide our clients with the best services. Each opportunity to improve, has provided us the space to renew and strengthen not only our practices, but our relationships.

The law has also continued to evolve throughout this time, and in this issue of ke kumu, we share articles related to COVID-19 issues, and updates to the law in the areas of trusts and estates, bankruptcy, real property, and more.

On the Cover Take flight into recent legal issues in Hawai‘i.

Mahalo nui loa Patricia J. McHenry was instrumental in the creation of this newsletter, acting as lead proofreader and editor. Pōhai Nu‘uhiwa Campbell, our resident polyglot, assisted with drafting the forward of this issue.

Feedback?

If you have questions, or would like to see an article on a particular area of law, please let us know!

Submit feedback via email to: feedback@cades. com.

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CONTRIBUTORS

A COMMUNITY EFFORT We invite you to take a moment and learn about the team who contributed to this issue.

Trisha H.S.T. Akagi Partner

Rhonda L. Griswold Partner

Summer G. Shelverton Partner

Roy A. Vitousek III Partner

Trisha is a partner in the Litigation Department at Cades Schutte. Her practice encompasses a wide range of commercial litigation matters including bankruptcy and creditors’ rights, water resources, non-competition covenants, and insurance disputes. She is a member of the firm’s Recruiting and Centennial Committees.

Rhonda is Chair of the Trusts and Estates Department.

For over 30 years, she has concentrated her practice in estate and trust planning, including using planning devices to reduce estate and gift taxes. She recently served on the drafting committee for Hawai‘i’s new Uniform Trust Code, and presented testimony to the legislature.

Summer concentrates her practice in the areas of estate planning, probate and trust administration, conser vatorship and guardianship proceedings, and trust and estate disputes.

As part of the drafting committee for Hawai‘i’s new Uniform Trust Code, she presented testimony to the legislature.

Randy is the resident Partner with the firm’s Hawai‘i Island Offices, Chair of the Land Use, Zoning, and Entitlements Practice Group, and former Adjunct Professor at the William S. Richardson School of Law. His practice focuses on real estate and land use law.

(808) 521-9318 takagi@cades.com

(808) 544-3871 rgriswold@cades.com

(808) 521-9236 sshelverton@cades.com

(808) 521-9345 rvitousek@cades.com

Ellen R. Ashford Associate

Mallory T. Martin Associate

As an associate in the Finance and Real Estate team, Ellen advises on some of the highest profile real estate, land use, and zoning matters in the state. Ellen earned her law degree from the William S. Richardson School of Law,UniversityofHawai‘i,summa cum laude, where she served as Co-Editor-in-Chief of the University of Hawai‘i Law Review.

Mallory is an associate in the Litigation Department at Cades Schutte. Her practice focuses on employment matters, commercial, business, and real estate litigation. Mallory obtained her Bachelor of Arts in Political Science with a minor in Religious Studies from Boston University, and earned her law degree from the University of Hawai‘i, William S. Richardson School of Law.

(808) 521-9352 eashford@cades.com

(808) 521-9213 mmartin@cades.com

A CADES SCHUTTE PUBLICATION | KE KUMU

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OUR LĪHU‘E OFFICE HAS MOVED Please note our new address: 3083 Akahi St. Līhu‘e, Kaua‘i 96766

Our Kaua‘i Team

Allison Mizuo Lee Partner (808) 521-9330 alee@cades.com 6 KE KUMU | A CADES SCHUTTE PUBLICATION

Mauna Kea Trask Partner (808) 521-9297 mtrask@cades.com

EMPLOYMENT LAW AND LABOR RELATIONS

CAN EMPLOYERS IN HAWAI‘I REQUIRE THEIR EMPLOYEES TO RECEIVE THE COVID-19 VACCINE? By: Mallory T. Martin _________________ mmartin@cades.com

A CADES SCHUTTE PUBLICATION | KE KUMU

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The spike in COVID-19 cases and the spread of the Delta variant have led companies to consider or impose COVID-19 vaccine mandates. Disney, Walmart, Facebook, and Google are among the companies requiring certain workers to get vaccinated before returning to work. Locally, Bank of Hawaii, Hawaiian Electric Company, Hawaiian Airlines, and most major hospitals have imposed vaccine requirements on their employees. Federal and state governments are also implementing COVID-19 vaccine policies. In July, President Joe Biden announced that federal civilian workers and on-site federal contractors will be required to demonstrate proof of vaccination or agree to recurrent testing and safety protocols. Similarly, Governor David Y. Ige announced that all state workers would need to be vaccinated or undergo weekly testing. The prevalence of these vaccine mandates begs the question: Can employers legally require their employees to obtain the COVID-19 vaccine? The short answer to this question is likely yes, but with certain limitations.

The Equal Employment Opportunity Commission (EEOC) has issued guidance regarding whether employers can require vaccines for employees.1 Although the guidance does not carry the force of law, it provides welcomed clarity for employers during a chaotic time. The EEOC guidance notes that federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions” of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA).2 In other words, an employer can generally require employees who enter the workplace to get vaccinated. However, federal laws, specifically Title VII and the ADA, require an employer to provide reasonable accommodations for employees who because of medical reasons or sincerely held religious beliefs cannot receive the vaccine. The accommodation must be provided unless it poses a direct threat to the health and safety of others or imposes an undue hardship on the employer. Examples of possible accommodations include having an unvaccinated person wear a face mask at work, or socially distance from other coworkers or nonemployees; obtain occasional COVID-19 tests, or be allowed to telework.

Additionally, employers must also take into account any potential impact that a vaccine mandate may have on certain demographic groups. The EEOC guidance advises that “[e]mployers should keep in mind that because some individuals or demographic groups may

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face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”3 A vaccination requirement cannot be applied in a way that “treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”4 Lastly, the EEOC guidance notes that employers are required under the ADA to keep vaccination documents confidential and stored separately from the employee’s personnel files.5 Similarly, on August 13, 2021, the Hawai‘i Civil Rights Commission (HCRC) issued an “explanation” on whether an employer can require employees to obtain the COVID-19 vaccine. The HCRC “explanation” states that a “vaccination requirement is a safety-based standard that does not on its face discriminate on any of” the bases protected by Hawai‘i fair employment law, Hawai‘i Revised Statutes § 378-2.6 Put differently, a vaccine mandate in and of itself does not appear to discriminate based on race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status.7 Like the EEOC guidance, the HCRC “explanation” notes that an employer must consider an employee’s request for a reasonable accommodation if the employee is not able to get vaccinated because of a disability or religious beliefs. If the accommodation poses a direct threat to the health and safety of the employee or other employees in the workplace or presents an undue burden, then the employer does not need to provide the requested accommodation.

According to the HCRC’s “explanation,” if an employee cannot obtain a vaccination due to a disability or sincerely held religious belief and there is no reasonable accommodation possible, then it “would be lawful for the employer to exclude the employee from the workplace.”8 The HCRC “explanation” advises that employers should evaluate other federal, state, and local laws before taking adverse action against an unvaccinated employee.

The federal and state guidelines are by no means a one-size-fits all model for employers. Employerimposed COVID-19 vaccine requirements will likely be the subject of future litigation. In the early challenge by 117 employees to Houston Methodist Hospital’s mandatory vaccination policy,9 the hospital required its employees to get

vaccinated or face termination. In their lawsuit, the employees argued that the hospital could not require a vaccine that was only approved for emergency use. The judge rejected this argument and ruled that the employees who brought the lawsuit were “refusing to accept inoculation that, in the hospital’s judgment, will make it safer for their workers and the patients in Methodist’s care.”10 The employees have filed an appeal with the United States Court of Appeals for the Fifth Circuit. The court’s decision and appeal occurred before full approval of the Pfizer-BioNTech vaccine by the Food & Drug Administration was issued on August 23, so the employees’ argument may be addressed by that authorization and may now be considered moot.

a potential vaccine mandate would have on hiring and retaining employees. By way of example, the vaccine mandate imposed by the City and County of Honolulu is predicted to sideline a significant number of unvaccinated first responders.14 Under certain circumstances, employers could consider less restrictive COVID-19 policies. For example, employers could allow unvaccinated employees to submit to weekly testing and other safety measures rather than impose a strict vaccination requirement. In crafting COVID-19 policies, employers should be aware of the ever changing COVID-19 requirements in their jurisdiction and should allow for flexibility in their policies.

Footnotes EEOC, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” U.S. Equal Employment Opportunity Commission, May 28, 2021, https://www.eeoc.gov/wysk/what-you-shouldknow-about-covid-19-and-ada-rehabilitation-act-andother-eeo-laws.

2 EEOC. 3 EEOC. 4 EEOC. 5 EEOC. 6 Hawai‘i Civil Rights Commission, “Question: Can an Employer Mandate or Require Employees to Get COVID-19 Vaccination?” State of Hawai’i, August 13, 2021, https:// labor.hawaii.gov/hcrc/files/2021/08/Can-an-employermandate-or-require-employees-to-get-COVID-19vaccination-8-11-21.pdf.

7 Hawai‘i Civil Rights Commission.

8 Hawai‘i Civil Rights Commission.

9 Bridges v. Houston Methodist Hospital, No. CV H-21-1774 (S.D. Tex., 2021).

10 Bridges, *1.

11 Klaassen v. Trustees of Indiana University, No. 1:21 CV00238 DRL (N.D. Ind., 2021).

12 Susan Svrluga, “Law Professor Sues George Mason University, Challenging Covid Vaccine Mandate,” The Washington Post, August 4, 2021, https://www. washingtonpost.com/education/2021/08/04/professorlawsuit-georgemason-vaccine-mandate/ 13 Pelekai v. State of Hawai‘i, No. 1:21 CV-00343 (Haw., 2021).

14 Peter Boylan, “Many Honolulu First Responders Ask to Opt out of Vaccine,” Honolulu Star-Advertiser, September 4, 2021, https://www.staradvertiser.com/2021/09/04/ hawaii-news/many-first-responders-ask-to-opt-out-ofvaccine/

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The Houston Methodist Hospital case is just one of many legal challenges to employer imposed vaccine requirements. The legal landscape is evolving at a rapid pace and several other lawsuits have been filed challenging COVID-19 vaccine mandates. For example, a federal court rejected a request by students to block a vaccine requirement imposed by Indiana University.11 A George Mason University law professor filed a lawsuit challenging the university’s COVID-19 policy.12 A group of Hawai‘i first responders challenged the vaccination requirements imposed by the State of Hawai‘i and City and County of Honolulu.13 These lawsuits highlight the legal risks associated with mandatory vaccination policies. To mitigate such risks, employers issuing mandatory vaccination policies should closely review federal and state guidelines. In accordance with these guidelines, employers should clearly identify the scope of the mandatory vaccination policy, the rationale for policy, and a deadline for receiving the vaccination. The EEOC recommends that an employer issuing a mandatory vaccination policy notify all employees that the employer will consider a request for reasonable accommodations on an individualized basis. Employers should provide guidance to employees responsible for handling accommodation requests on how to identify accommodation requests and the procedures for considering accommodation requests. Employers should also take into account the potential impact of a vaccination requirement on its work force.

For instance, employers should be mindful of the vaccination rate in the community and the impact

Mallory T. Martin (Associate) is a member of the Litigation Department at Cades Schutte. She earned her law degree from the University of Hawai‘i, William S. Richardson School of Law.

A CADES SCHUTTE PUBLICATION | KE KUMU

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TRUSTS AND ESTATES

HAWAI‘I ADOPTS NEW Uniform Trust Code

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ffective January 1, 2022, Hawai‘i will join 34 other states and the District of Columbia in adopting the Uniform Trust Code (“UTC”). The UTC is a codification of the law of trusts, bringing together common law principles, restatement of law concepts, and various pre-existing statutes governing trusts under one statutory umbrella.

The UTC is primarily a default statute, which means that the terms of the trust document will continue to control the administration of the trust. While there are certain duties and powers that cannot be changed by the trust document (such as the trustee’s duty of good faith and the trustee’s duty to account), the meaning and distribution of the trust is governed by the trust instrument. However, where the trust is silent or fails to address an issue sufficiently, the UTC can provide guidance and procedures on how the trust is to be administered.

The UTC also fills in gaps where prior law was non-existent or unclear. For example, there is now a clear statute of limitations for persons to challenge the validity of a trust and/or to bring claims against a trustee. With respect to proceedings to contest a trust, the proceeding must be commenced within five years of the settlor’s death or 90 days after the trustee has sent the person a copy of the trust document and notice of the trustee’s name and address

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and the time period for contesting the document, whichever time period expires first. This time limit is the same as the statute of limitations for will contests, which makes sense given that revocable trusts serve as will substitutes. And it will make it easier for trustees who are concerned about challenges to the trust to proceed with the trust administration if they have given notice of the 90-day deadline to potential challengers.

Similarly, the UTC provides clearer statutes of limitations for beneficiaries to bring claims against a trustee. If the trustee provides a report to the beneficiary that adequately discloses the facts giving rise to the potential claim, then the beneficiary must file the breach of trust claim within one year or the claim is barred. If no such report is provided, then the beneficiary has three years from either the resignation of the trustee, the termination of the beneficiary’s interest, or the termination of the trust itself, whichever occurs first, to bring the claim. Of course, instead of relying on statutes of limitations, the safest route for a resigning trustee or trustee distributing assets at trust termination is to obtain formal approvals from the beneficiaries and/or the Probate Court.

The UTC also provides new opportunities to modify or even terminate trusts that have served their purpose or otherwise no longer make sense.

What is it and what does it mean for you?

Rhonda L. Griswold _________________ rgriswold@cades.com

Summer G. Shelverton _________________ sshelverton@cades.com

If the settlor establishes an irrevocable trust and thereafter is still living, then the trust can be modified or terminated with the consent of the settlor and all of the beneficiaries even if such termination or modification completely defeats the original purpose of the trust. However, this option only applies to irrevocable trusts established after the effective date of the UTC (January 1, 2022). If the settlor is not alive and all the beneficiaries agree, then the Probate Court can modify or terminate the trust if the Court concludes that the modification or termination is not inconsistent with a material purpose of the trust even if the trust was established before the effective date of the statute. This mechanism could be used, for example, if the trust were originally established for tax purposes but the tax laws then changed to such an extent that the trust was no longer necessary. That said, there may be other reasons that such a trust still makes sense, such as providing protection against creditors or keeping the assets in the family. The UTC also allows for court-approved modifications or termination because of circumstances not anticipated by the settlor or if the continuation of the trust becomes impracticable.

This is just a small sampling of the provisions. The UTC covers a vast range of issues, including the establishment of the relationship, trustee conflict-of-interest

UTC trust trust and

succession issues, the trustee’s duty to account during the settlor’s lifetime and thereafter, trustee’s duties and powers, and holding trustees accountable to trust beneficiaries. While the UTC gives deference to the settlor and the settlor’s intent as expressed in the trust document, we expect that the UTC will help beneficiaries, trustees, attorneys, and the Probate Court navigate the variety of issues that can arise in the context of trust administration.

Rhonda L. Griswold (Partner) is Chair of the Trusts and Estates Department. For over 30 years, she has concentrated her practice in estate and trust planning, including using a variety of planning devices to reduce estate and gift taxes.

Summer G. Shelverton (Partner) is a member of the Trusts & Estates Department. She enjoys creating and implementing estate planning strategies to accomplish a client’s goals.

Both Rhonda and Summer recently served on the drafting committee for Hawai‘i’s new Uniform Trust Code, and presented testimony to the legislature.

A CADES SCHUTTE PUBLICATION | KE KUMU

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BANKRUPTCY & CREDITORS’ RIGHTS

Commercial Landlords and Tenants: Ta ke N ote o f th e s e C h a n g e s to t h e B a n kr u p tcy Co d e By: Trisha H.S.T. Akagi _________________ takagi@cades.com

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ith COVID-19 cases continuing to stay high and hospitals at or above capacity, we may soon see the return of a full or partial lockdown. That means that businesses will again be struggling to make ends meet and bankruptcy filings may be on the rise. Some important changes were made to the bankruptcy code at the end of 2020 when Congress signed into law the Consolidated Appropriations Act of 2021 (the “Act”) to provide much needed COVID-19 relief to individuals and businesses.

The Act included nine changes to the Bankruptcy Code, but this article focuses on three that pertain to commercial leases. These changes should be heeded as commercial landlords and tenants undertake rent relief discussions because understanding the ramifications of a tenant’s bankruptcy filing may help inform what accommodations should be considered.

Extension of time for performance of lease obligations. The first change made by the Act is the extension of the time for performance of nonresidential property lease obligations. Under Section 365 of the Bankruptcy Code, a trustee is obligated to perform all of the obligations of the debtor under an unexpired lease of nonresidential property from the date the order for relief is entered until the lease is assumed or rejected (11 U.S.C. § 365(d)(3)(A)). This time for performance may be extended by the court for a 60-day period for good cause shown (Id). Under the amendments made by the Act, the court may extend the time for performance for an additional 60-day period (total of 120 days) “if the debtor is continuing to experience a material financial hardship due, directly or indirectly, to the [COVID-19] pandemic[.]” (Id. § 365(d)(3)(B)(i) (2020)). This additional 60-day extension may only be utilized by small business debtors filing under Chapter 11, subchapter V. Commercial landlords should take this possible additional extension into consideration when discussing rent deferral or abatement with small business tenants. Under the changes made by the Act to Section 365(d)(3), a small business commercial tenant could remain in

the premises without fully complying with the terms of the lease for up to 120 days. For example, if the order for relief is entered on October 1, 2021, the trustee could potentially have until January 29, 2022, to fully perform all the lease obligations.

made in the ninety days prior to the filing of the bankruptcy petition with some exceptions (11 U.S.C. § 547(b) (2020)). The Act added to these exceptions “covered payment of rental arrearages” (Id. § 547(j)(2)(A)).

A “covered payment of rental arrearages” is:

Extension of time to assume or reject unexpired lease. The second change made by the Act is the extension of time to assume or reject an unexpired lease of non-residential real property. One of the most powerful tools of bankruptcy is the ability of the debtor to reject undesirable executory contracts including unexpired leases. Prior to the Act, a trustee had up to 120 days or the date of entry of an order confirming a plan to assume or reject an unexpired lease of non-residential real property under which the debtor is the lessee (11 U.S.C. § 365(d)(4)(A)(i)). The 120 days could be extended for an additional 90 days by order of the court (Id. § 365(d)(4)(B)(i)). If the trustee did not do so, the lease was deemed rejected and the trustee would have to immediately surrender the property to the lessor (Id. § 365(d)(4)(A)(i)).

1) A payment of arrearages 2) Made in connection with an agreement 3) Between the debtor and landlord “to defer or postpone the payment of rent or other periodic charges under a lease of nonresidential real property” 4) Made or entered into on or after March 13, 2020 (Id. § 547(j)(1)(A)(i)).

While covered payments may include fees, penalties, or interest, these amounts cannot exceed the amounts provided for under the terms of the lease or what the debtor would have owed if it was current as of March 13, 2020 (Id. § 547(j)(1)(A)(ii)). This change incentivizes commercial landlords to allow flexible payments from distressed tenants by assuring the landlord that those payments will not be clawed back if the tenant ends up filing The Act extended the time in which a trustee for bankruptcy. As with the extension of time to may assume or reject an unexpired lease of non- assume or reject unexpired leases, this change residential real property to 210 days (11 U.S.C. § applies to all debtors, not just Chapter 11 small 365(d)(4)(A)(i) (2020)). With the additional 90 business debtors. day extension, a trustee could have up to 300 days to assume or reject an unexpired lease. These changes are currently scheduled to For example, if the order for relief is entered sunset on December 27, 2022. on October 1, 2021, a trustee could potentially have until July 28, 2022, to assume or reject an unexpired lease. That is a long time for landlords to remain in limbo. Unlike the amendment to Section 365(d)(3), the extension to 210 days applies to all debtors.

“Covered payments of rental arrearages” no longer considered a preference and cannot be clawed back. Perhaps the most important change for commercial landlords is the change to Section 547 that addresses preferences. Under Section 547, a trustee may avoid certain transfers of assets to creditors

Trisha H.S.T. Akagi (Partner)’s practice focuses on high-stakes litigation matters including bankruptcy proceedings, non-competition covenants, and environmental issues including water resources.

A CADES SCHUTTE PUBLICATION | KE KUMU

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LAND USE, ZONING, AND ENTITLEMENTS

PASH: No One Legacy for Hawai‘i Land Use and Shoreline Public Access By Roy A. Vitousek III _________________ rvitousek@cades.com

Edited by Ellen R. Ashford _________________ eashford@cades.com

In 1995 I argued Public Access Shoreline Hawaii v. Hawai‘i Planning Commission, commonly known as “PASH,” before the Supreme Court of Hawai‘i.1 The increasing development of coastline on the island of Hawai‘i resulted in community opposition to the County’s issuance of a Special Management Area (SMA) use permit for a proposed resort development. The issue was whether a public interest group had legal standing to participate in contested case hearings before the planning commission as it considered whether to grant a special management area use permit, which the court answered in the affirmative. The court ruled that the landowner’s private property rights were not absolute and that before it could grant development permits, the Planning Commission had to consider the rights and interests arising out of traditional and customary native Hawaiian gathering practices.

The United States Supreme Court declined to review the PASH decision and in the quartercentury since, the appellate courts in Hawai‘i have worked to balance traditional notions of property rights—including the right to exclude—with the traditional and customary right of access.

As a practical matter, PASH led to the establishment of public access to beaches across land that is “less than fully developed.”2 The recognition that land use decisions must be made only after the impact of the proposed use on important cultural resources or practices has been meaningfully assessed, however, has continued to expand in the law as well as state, county, and community programs.

Upon being asked last year to reflect on the legacy of PASH, I find there is no one answer, no one legacy, positive or negative, and no one theme that brings together thirty years of trying to develop and implement a legal construct that enables people who are closest to the land to have their interests thoughtfully and rigorously taken into consideration when land uses are proposed that could adversely impact important cultural resources or practices.

Instead, there are positive aspects of the PASH legacy and aspects that are not positive, or not-yet positive. I advocate a model of PASH rights based on mutual best interests of all people on the land that reflects the modern expression of traditional Hawaiian culture.

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I. THE POSITIVE LEGACY OF PASH A. Agency Decisions There are now clear legal requirements and criteria for cultural impact assessment, historic preservation review, and formal consideration of customary and traditional practices as part of assessing applications for most forms of permits and approvals that would authorize the development.3 This is the most important, most concrete result of PASH. Nearly every government permit that would authorize development of previously undeveloped land, by law, cannot be approved unless a formal assessment of historic sites, cultural resources, and cultural practices is conducted and formally considered by the approving agency.4 This includes district boundary amendments,5 changes in zoning,6 special management area use permits, 7 conservation district use permits, shoreline setback variances, any actions that trigger HRS Chapter 343, special permits, use permits, subdivision applications, and grading permits for more than one acre. These changes, largely implemented by state statutes, county ordinances, and state and county regulations, have increased both public outreach before applications are filed and public notice of applications and hearings.

The big cases that blossom into communitywide controversy get the attention of the appellate courts, the greater community, and the media. Certainly, the Thirty Meter Telescope at the Mauna Kea Science Reserve (TMT) is such a case.8 But when I personally look at the real on-the-ground legacy of PASH, I see the hundreds of matters in which I have been involved since 1990 and the tens of thousands of other permit applications over the last twentyfive years where the cultural assessment processes born in PASH were utilized, where information as to cultural and historical resources was carefully collected and presented to the relevant agency, where the agency formally considered the potential that proposed action might

adversely impact customary and traditional practices or resources, and where the agency’s decision was guided by the now widely understood legal mandate to “protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible.”9

B. Cultural Education and Preservation

PASH and its progeny also enhanced the role that Hawaiian cultural values play in education, planning, and environmental preservation throughout Hawai‘i.10 This can be contributed to the continued renaissance of Hawaiian culture and cultural values, which led to PASH, but to which PASH and its progeny have also contributed.11 There is a growing recognition that Hawaiian cultural practices were instrumental in enabling a large indigenous population to live sustainably in a resource-limited environment and that, as such, these practices can serve as a model for humanity and for the future.

Over the last twenty-five years, numerous projects and programs on every island have worked to make cultural practices part of our daily lives and our future. These include sustainable fisheries,12 agriculture,13 loko i‘a (aquaculture systems that optimize natural patterns of watersheds, nutrient cycles, and fish biology),14 trail and access organizations,15 and land acquisition and conservation easements, often with assistance from county, state, and federally funded land acquisition and open space funds.16 These programs are a part of the legacy of PASH. More importantly, they are the way forward.

To carry forward the positive legacy of PASH, we must continue to exercise the cultural practices associated with the areas where we live. We must continue to make it real. We must make these practices part of our daily lives by walking the land with

purpose and intention, fishing, hunting, gathering edible, medicinal, and decorative plants, and using these important resources to enhance our lives. By perpetuating these spiritual practices through regular exercise, we preserve them for the future.

Footnotes 1. Public Access Shoreline Hawai‘i v. Hawai‘i County Planning Commission (PASH), 903 P.2d 1246 (Haw. 1995).

2. PASH, 1271.

3. See e.g., PASH, 1258–63: (discussing traditional and customary rights under article XII, section 7 of the Hawai‘i Constitution); In re Contested Case Hearing Re Conservation Dist. United States Application (Cdua) Ha-3568 for the Thirty Meter Telescope At the Mauna Kea Sci. Reserve (In re TMT), 431 P.3d 752, 775-76 (Haw. 2018) (citing Haw. Code R. § 13-5-30 (2021) on general requirements for permits).

4. See e.g., Haw. Code R. § 13-5-39 (2021). (requiring a comprehensive management plan when development “may lead to significant natural, cultural, or ecological impacts within the conservation district”); Haw. Code R. § 13-5-2 (2021) (defining “[c]omprehensive management plan” as a “comprehensive plan to manage multiple uses and activities in order to protect and conserve natural and cultural resources”); see generally PASH, 1271–72 (discussing case law regarding access under article XII, section 7 to “undeveloped lands”).

5. See Ka Pa‘akai O Ka‘Aina v. Land Use Commission (Ka Pa‘akai), 31 P.3d 1068, 1084-87 (Haw. 2000) (discussing the sufficiency of Land Use Commission findings in granting a petition to reclassify a district).

6. See PASH, 1257–58 (explaining that negative effects on native Hawaiian cultural resources and historic sites are adverse effects for purposes of a Special Management Area (SMA) use permit and that “the HPC may not issue a SMA use permit unless it finds that the proposed project will not have any significant adverse effects”).

7. See generally Haw. Code R. § 13-5-1 (2021) (setting forth administrative rules “to regulate land-use in the conservation district”).

8. In re TMT, 752.

9. Ka Pa‘akai, 1072 (citing PASH, 1271 n.43).

10. See e.g., In re TMT, 752; Kaleikini v. Yoshioka, 283 P.3d 60 (Haw. 2012).

11. See e.g., Pele Defense Fund v. Paty, 837 P.2d 1247 (Haw. 1992); Kalipi v. Hawaiian Trust Company, 656 P.2d 745 (Haw. 1982); Shari Nakata J.D., “Language Suppression, Revitalization, And Native Hawaiian Identity,” Diversity and Social Justice Forum 2 (Fall 2017): 14 (discussing the role of the Hawaiian language in the resurgence of interest in Native Hawaiian culture).

12. E.g., Hā‘ena Community-Based Subsistence Fishery Area on Kaua‘i, Hui Maka‘āinana o Makana, Hui Mālama o Mo‘omomi on Moloka‘i.

13. E.g., Waipā Foundation, Ulu Mau Puanui.

14. E.g., Paepae o He‘eia, Kua‘aina Ulu ‘Auamo, Hui Mālama Loko I‘a.

15. E.g., Na Ala Hele, Ala Kahakai.

16. By Hawai‘i Land Trust, Trust for Public Land, and the Nature Conservancy.

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II. WHERE THERE IS STILL WORK TO BE DONE Kohanaiki is the home of the PASH case.17 The customary and traditional practice identified in PASH was the gathering of ‘ōpae ‘ula (shrimp) in the anchialine ponds to use as bait in offshore ‘ōpelu ko‘a (places where ‘ōpelu congregate in nearshore waters).18 Mahealani Pai’s description of this practice gave PASH, a beach access group, standing to participate in the permit hearing.19 Today, there is regulated public access to half of the Kohanaiki shoreline.20 This is a tremendous benefit to the general public and is a direct result of PASH. One price of this public access is that the coastal anchialine ponds are tremendously degraded. During a recent visit to Kohanaiki, every anchialine pond I saw was in an advanced state of senescence: covered with algae mats and populated by guppies and other introduced fish species. I was not able to find a single ‘ōpae ‘ula, ‘ōpae lolo, or ‘ōpae lohena (indigenous shrimp).

Ka‘ūpūlehu Development (KD) gave us the Ka Pa‘akai decision. At KD, the primary cultural practices identified were the gathering of salt and fishing.21 Lineal descendants described gathering salt of the highest quality at Kalaemanō and subsistence fishing and gathering of limu (seaweed) and ‘opihi (limpets) along the coastline. Their testimony was born of personal and family experience.

had not provided public access because the timing of public access was tied to development of the golf course which KD had decided not to develop was raised.

The extension of KD’s zoning allowances was conditioned on KD’s provision of public shoreline access. Limited public access to the shoreline was opened in 2019.

In the interim, a developer-sponsored group called the Ka‘ūpūlehu Marine Life Advisory Committee (KMLAC) proposed creating a no-fishing zone from the south side of the Kūki‘o Resort through the Ka‘ūpūlehu Resort and Kona Village Resort, to Kalaemanō on the north side of KD.23 KMLAC included lineal and cultural descendants.24 The group advocated for a ten-year complete ban on any form

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I was at a meeting at KD in 2019 where the developer’s representative explained to KD homeowners that while KD was going to be required to provide public access to the shoreline, “it should not be a problem” because no fishing was allowed and most of the people who wanted public access to the coastline would have been fishermen.

I myself gather salt at Kalaemanō. I have been doing this regularly for decades.

This is what high-quality salt (ka pa‘akai) from Kalaemanō looks like:

Figure 1

The Ka Pa‘akai litigation resulted in certain areas being set aside for cultural use and public shoreline access, parking, and trails upon the opening of the golf course.22 Aside from the “front row” lots, most are undeveloped and unsold. Grading and construction are still ongoing.

Over the years, KD decided not to develop a golf course, so it did not develop public access. Between 2001 and 2019, there was no public access to the Ka‘ūpūlehu/ Kalaemanō shoreline through KD. In 2019, KD applied to extend some of its zoning conditions. In a hearing before the Leeward Planning Commission, the fact that KD

of fishing or marine gathering along the same coastline involved in Ka Pa‘akai.25 Governor Ige approved the creation of the new marine reserve at Ka‘ūpūlehu on July 29, 2016.26

This is what the salt that you can find on the coastline in front of KD looks like today:

Figure 2

It used to look like the salt in Figure 1. For the last five years, it has looked like the salt in Figure 2. Dirt and rock powder from the grading activity, and from graded but not yet vegetated lots, blow into the salt pools and pans on the coast. Is this the legacy of PASH and Ka Pa‘akai?

III. PASH “RIGHTS” BASED ON MUTUAL BEST INTERESTS I hope that as the legacy of PASH grows, we can move to a model of PASH rights based on cooperation and the mutual best interests of all people on the land. The Hawai‘i Supreme Court has repeatedly stated that “the non-confrontational aspects of traditional Hawaiian culture”27 and the “traditional Hawaiian way of life in which cooperation and non-interference with the well-being of other residents were integral parts of the culture”28 were important factors to reduce the risk that the exercise of customary and traditional rights and practices would cause potential disturbance or disruption to the legitimate interest of others in the community.29 These rights and practices grew out of a cooperative model of access to resources necessary to sustain life in pre-contact Hawai‘i, and, as in all cultures, some people are more cooperative and nonconfrontational than others. Where some people exercise and defend cultural and traditional rights for their own intrinsic importance, others weaponize traditional rights to oppose developments which they do not want to occur. They are legally entitled to do this, but this relegates important traditional rights and practices to the contentious world of courthouses and agency hearing rooms.

I have spent my life in Hawai‘i on the land and in the ocean. I fish, hunt, and gather.

In the places I frequent, I have learned the ahupua‘a (ancient Hawaiian system of land division), the habitation sites and cultivation sites, the offshore ko‘a (fishing grounds),30 and more or less what grows where. I listen to and learn from other people of the land— fishermen, hunters, farmers, scientists, practitioners, landowners, and regulators— people who do the things I do and do them better.

I believe that making a real effort at cooperative, non-confrontational access should be a prerequisite to claiming PASH

rights in court or agency processes. It would be most consistent with traditional practices if people seeking to exercise PASH rights on lands owned by others would communicate their interest and seek cooperative access directly with the landowners before exercising access and gathering rights and certainly before going before agencies or courts to assert and/or enforce them. Gatherers should help landowners understand the nature and importance of traditional practices and landowners should help gatherers understand their concerns.

This would avoid disputes and might help the decision-makers analyze the interests of both parties, assess what is a reasonable or unreasonable exercise of rights, and help find the balance.

The goal, and perhaps the most enduring legacy of PASH, is to have all of Hawai‘i’s people recognize the importance of traditional practices and to understand how mutual cooperation and mutual respect perpetuate these rights and keep them real and useful in the modern world.31

17. PASH, 1246.

18. PASH, 1251 n.6.

19. See PASH, 1251. Explaining that the circuit court’s order overturning the Commission’s decision to grant a Special Management Area Use Permit was “based in large measure on an affidavit filed in the circuit court by [Public Access Shoreline Hawai‘i] …”

20. See generally PASH, 1273. Concluding that the Coastal Zone Management Act and the Hawai‘i Constitution require the preservation and protection of “native Hawaiian rights… when issuing a SMA permit”.

21. Ka Pa‘akai, 1085.

22. Ka Pa‘akai, 2a, 2c, 2d.

23. Ka‘ūpūlehu Marine Life Advisory Committee (KMLAC), “Ka‘ūpūlehu Administrative Record,” February 2, 2016, https://dlnr.hawaii.gov/dar/ files/2016/02/Kaupulehu_Administrative_Record_ Public.pdf.

24. Ka‘ūpūlehu Marine Life Advisory Committee (KMLAC), 14.

25. Ka‘ūpūlehu Marine Life Advisory Committee (KMLAC), 12.

26. DAR, “Marine Reserve Established at Ka‘ūpūlehu, West Hawai‘i,” State of Hawai’i - Division of Aquatic Resources, August 3, 2016, https://dlnr.hawaii.gov/ dar/announcements/marine-reserve-established-atkaupulehu-west-hawaii/ 27. PASH, 1268.

28. Kalipi, 750.

29. See PASH, 1268; Kalipi, 750.

30. Coral, coral head, or fishing grounds. “Ko‘a (Definition),” Wehewehe wikiwiki, accessed September 17, 2021, https://hilo.hawaii.edu/ wehe/?q=Ko%CA%BBa&l.

31. See Roy A. Vitousek, PASH: No One Legacy, U. HAW. L. REV. (forthcoming 2021) for the extended version of this article.

Roy A. Vitousek III (Partner) is the resident Partner with the firm’s Hawai‘i Island Offices. He is Chair of the Land Use, Zoning, and Entitlements Practice Group.

Ellen R. Ashford (Associate) advises on some of the highest profile real estate, land use, and zoning matters in the state.

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FOOTNOTE

Women Who Mean Business Allison Mizuo Lee has been selected as an honoree for Pacific Business News’ 23rd annual Women Who Mean Business (WWMB) awards. The WWMB awards celebrate the voices, accomplishments, and impact of some of the most successful businesswomen in Hawai‘i. This year, Allison was one of 40 honorees representing various industries, including health care, insurance, education, and real estate, among others.

United States District Court for the District of Hawai‘i Pro Bono Service Coordinators Award Patricia J. McHenry was named a Pro Bono Service Coordinators Award Honoree and Mallory T. Martin and Nathaniel T. Dang were named Pro Bono Panel Service Recognition Honorees by the United States District Court for the District of Hawai‘i. They were recognized at the Pro Bono Panel Service Recognition Ceremony in November 2021.

American Judicature Society Special Merit Citation Colin O. Miwa was awarded the 2021 American Judicature Society (AJS) Special Merit Citation, which recognizes projects and efforts that benefit some aspect of the judicial system, including those that are narrowly focused or time-specific. Colin has been an active member of the AJS, serving on the AJS Board of Directors since 2009 and actively participating on several of its committees including as co-chair of the Standing Committee on Judicial Selection, Retention, and Accountability; co-chair of the Sidebar Standing Committee; co-chair of the Special Committee on Mandatory Retirement of State Court Judges; and as a member of the Communications Committee. Colin was honored at AJS’ National Meeting and Awards Luncheon.

Advocating for Freedom of Information for Hawai‘i’s Education Our pro bono representation of the Education Institute of Hawaii (EIH) has concluded with a total victory for EIH when the Court ruled on June

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14, 2021, that the DOE must pay EIH nearly all of its attorney’s fees and thousands of dollars in related costs, totaling nearly $100,000. Our litigation on EIH’s behalf was against the state Department of Education, which had wrongfully refused, for several years, to provide financial records in response to EIH’s open-records request. Through the litigation, we helped EIH obtain all the documents it sought, obtain summary judgment against the DOE, and--now--obtain an award of fees that the Court stated is intended to deter future misconduct by the DOE or other agencies. Jeffrey S. Portnoy and John P. Duchemin led this matter.

Asylum Case Win for the University of Hawai‘i Refugee & Immigration Law Clinic Volunteer attorneys from Cades Schutte, including partner Andrea K. Ushijima, assisted the University of Hawai‘i William S. Richardson School of Law Refugee & Immigration Law Clinic in an asylum case for a Guatemalan single mother and her two children in the Honolulu Immigration Court. On August 16, 2021, she and her children were finally granted asylum, marking a significant win within a system historically reluctant to grant such relief.

Residential Real Estate Across the Hawaiian Islands In FY 2021 Roy A. Vitousek III originated and the Cades Schutte team completed 52 residential real estate transactions across the Hawaiian Islands with a total sales price of $416 million, and an average sales price of $8.3 million.

Chambers & Partners USA and High Net Worth Guides Cades Schutte was recognized as a top law firm in the areas of Bankruptcy/Restructuring, Corporate/Commercial, Labor & Employment, Litigation: General Commercial, Private Wealth Law, Real Estate, and Tax, and 23 Cades Schutte attorneys were ranked this year in the Chambers & Partners USA and High Net Worth Guides.

On the Board Trisha L. Nishimoto was accepted to the Federation of Defense and Corporate Counsel (FDCC), composed of recognized leaders in the legal community who have achieved professional distinction, and are dedicated to promoting the principles of integrity and professionalism in their representation of those in need of a defense in civil lawsuits. FDCC is highly selective in its membership, with a limit of 1,300 attorneys in private practice in the United States. She joins Peter W. Olson, a longtime member of the FDCC. Cheryl L.M.T. Itagaki was approved as one of Hawaii Employers Council (HEC)’s Board of Governors beginning in 2022 for a three-year term.

Cades Schutte LLP and the Cades Foundation sponsored Family Program Hawaii’s 2021 drive-through holiday party

Welcome We are pleased to welcome six new associates to the firm this fall Ellen R. Ashford, William K. Morrison, and W. Davis Prendergast have joined the Finance and Real Estate department, Christine E. Nowland and Nicole K. Yamane have joined the Litigation department, and Janine M. Yim has joined the Trusts & Estates and Litigation departments.

Cades Schutte LLP attorneys and staff raised $5,830 for the Hawaii Foodbank Law Coalition Food Drive

The Cades Schutte team partici pating in this year’s American Heart Association Heart Walk

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