In January 2022, the Native Hawaiian Legal Corporation (“NHLC”) began work as counsel for Hoku Cody, Jessica Kaui Fu and Mehana Vaughan as representative members of Nā Kiaʻi o Nihokū – a group of cultural practitioners revitalizing traditional and cultural practices at the wahi pana known as Nihokū, located on Kauaʻiʻs North Shore in Kīlauea.  Since 2015, Nā Kiaʻi o Nihokū members have engaged in a variety of Native Hawaiian practices, including mele, oli, hula, awa, kilo, and Makahiki ceremony at Nihokū, also known as Crater Hill.

At the base of Nihokū sits the Seacliff Plantation subdivision, a gated community accessible by car through a keyed gate or by foot through a pedestrian access.  Within the Seacliff Plantation subdivision are several lots located along the base of Nihokū, including Lot 11-A which is along the steepest section of Nihokū and abuts a 203-acre U.S. Fish and Wildlife Serviceʻs Kīlauea National Wildlife Refuge (“Refuge”). In June of 2021, Philip and Linda Green, owners of Lot 11-A, applied for permits to develop a 30,000 square foot compound on the highest portion of their parcel. In December 2021, Nā Kiaʻi o Nihokū requested a contested case hearing regarding the permit application because of the impact of the proposed development on their Native Hawaiian traditional and customary practices.

Between November 2022 and January 2023, a 9-day contested case hearing was conducted by a hearing officer for the Kauaʻi County Planning Commission (“Hearing Officer”). NHLC argued that the size and location of the planned house on Nihokū would impact Native Hawaiian practices occurring on the Refuge directly adjacent and within eyesight of Lot 11-A.  Specific impacts to the studied practice of kilo, including obstruction of view plane by the proposed development and light pollution from the house, were highlighted during the proceedings.

NHLC also argued that the location of the proposed development was inconsistent with the applicable building setback line for Lot 11-A. In the 1980s, an original building setback line which tracked the lower ridgeline of Nihokū was established for Lot 11-A.  Multiple attempts by the subdivision developer to amend the building setback line were opposed by the community and ultimately failed. In 1994, the developer attempted to get approval for a higher and more generous building setback line in exchange for a variety of promises intended to benefit the Kīlauea community.  However, the developer never fulfilled those promises.  The Greens’ 2021 permit application relied upon this higher 1994 setback line as part of the submitted building plans.

On July 15, 2024, the Hearing Officer issued recommendations for conditions on the Greens’ requested permit based on the evidence presented during the contested case hearing.  In support of their recommendations, the Hearing Officer concluded, in part, that: 1) the traditional and customary practice of kilo – while not happening on the Lot 11-A – will nevertheless be impacted by the proposed development and accordingly, various permit conditions to mitigate that impact were necessary; and 2) the 1982 building setback line applies to Lot 11-A and therefore, all development must occur within that lower building setback line.

“We are grateful to the kūpuna of the Kīlauea community that had the foresight to protect Nihokū all those years ago, and that children of Kīlauea will continue to know the views, serenity and joy of this wahi pana,” said the Nā Kiaʻi o Nihokū group. “The oral histories and cultural practices of the Kīlauea community, the rhythms and seasonality of the sea birds that nest and live there, and the unique land and seascape are all important data points for us practitioners to understand in order to provide the best care for this place that is unlike anywhere else in the world.”

“For 40 years, this community has protected Nihokū – a place that is significant as a Kīlauea community landmark, a refuge for the largest seabird colony in the world and as a wahi pana for cultural practitioners,” said Kirsha Durante, Litigation Director of the Native Hawaiian Legal Corporation. “In the face of this most recent challenge, the rising generation of cultural practitioners undertook this kuleana to protect Nihokū once again and fortunately, the hearing officer heard them.”   

The period for objections to or support for the Hearing Officer’s recommendations recently closed, and the parties now await the Hearing Officer’s response.  The matter will then be transferred for hearing before the Kauaʻi Planning Commission who makes the final determination. The Kauaʻi Planning Commission may reverse, modify or adopt the recommendations of the Hearing Officer.       

The legal team at NHLC for this matter includes Kirsha Durante, Terina Faʻagau, and prior to her departure from the firm, Daylin-Rose Heather.  

Timothy Irons of Dentons is counsel for the permit applicants, Phillip and Linda Green. 

The Hearing Officer’s report and recommendations are accessible here:

• Hearing Officer’s Recommendations