
The Native Hawaiian Legal Corporation (“NHLC”) recently represented client Nā Kiaʻi o Nihokū before the Kaua‘i County Planning Commission (the “Commission”) at its November 12, 2024 meeting. Nā Kiaʻi o Nihokū includes Jessica Kauʻi Fu, Mehana Vaughan, Hoku Cody, who were named intervenors in the case, as well as Kapua Chandler, Billy Kinney, and other cultural practitioners from Kīlauea.
NHLC began work as counsel for Nā Kiaʻi o Nihokū after owners of a lot in the Seacliff Plantation Subdivision, which sits at the base of Nihokū, applied for permits to develop a 30,000 square foot compound on their property. Nā Kiaʻi o Nihokū successfully requested a contested case hearing regarding the permit. With NHLC, they argued that the development would improperly exceed a development setback line that community has advocated hard to hold since 1982, across multiple generations of effort, to protect wildlife and numerous constitutionally-protected Native Hawaiian traditional and customary practices. Extensive evidence regarding the history of the setback line and the traditional and customary practices at Nihokū was presented during a 9-day contested case hearing in late 2022 and early 2023.

In July 2024 the hearing officer issued recommendations for conditions on the development permits, which NHLC previously posted a blog post about. The hearing officer recommended, in part, that permit conditions to mitigate impacts of the proposed development on traditional and customary rights are necessary, and that the building setback line established in 1982 applies to permit applicants’ property. The matter was then transferred for hearing before the Commission to reverse, modify, or adopt the recommendations of the hearing officer.
At the November 12, 2024, Commission meeting, NHLC argued before the Commission and requested that it adopt the hearing officer’s recommendations. Community – including representative members of Nā Kiaʻi o Nihokū, witnesses in the contested case, as well as children and grandchildren of participants in the original efforts and case establishing the setback line – submitted written and oral testimony about Nihokū’s significance to their community and their cultural traditions and practices. Many also expressed their gratitude to the Planning Commission for the time and work Commission members invested in understanding the Kīlauea community’s concerns and rights and ultimately protecting Nihokū.
The Commission unanimously adopted the hearing officer’s recommendations, which limits development on that property to the setback line that community had fought for and put in place four decades ago in 1982. The Commission issued its decision and order adopting the recommendations on November 14, 2024.
Through a joint statement, members of Nā Kiaʻi o Nihokū share: “This is a reminder to always follow your naʻau and look to the past and our ancestors to help us navigate the future. We are reminded of the brilliance of our kūpuna before us that have always worked to mālama and protect our homelands. Mahalo to all of you, our NHLC team and those before us carrying this kuleana. The conclusion was beautiful, full of truth, and full circle. The power of three generations sharing their testimony and love for this place. Gratitude reflected.”
“This decision is the culmination of several generations’ efforts to protect the integrity of and access to Nihokū. The development setback line established in the 1980s was a compromise with the community intended to ensure that development would not result in the desecration of this wahi pana. The Commission’s decision honors that compromise and allows for the continued exercise of constitutionally-protected Native Hawaiian traditional and customary practices by the community, like members of Nā Kiaʻi o Nihokū. We hope the Commission’s decision provides the finality needed to protect Nihokū in perpetuity.” Kirsha Durante, Litigation Director at NHLC and lead counsel for Nā Kiaʻi o Nihokū.

The County or the landowner can file an appeal within 30 days of the Commission’s decision. If no appeal is filed, the Commission’s decision is final.
Background Case Information
The Commission’s decision and hearing officer’s report and recommendations are accessible here:
- November 14, 2024 Decision and Order of the Kauai Planning Commission.
NHLC’s previous blog post on this matter is available here: Following 9-Day Contested Case Hearing Challenging Development, Kauaʻi County Planning Commission Hearing Officer Recommends Protection of Nihokū
Parties in this matter include:
- Nā Kiaʻi o Nihokū includes Jessica Kauʻi Fu, Kapua Chandler, Billy Kinney, Mehana Vaughan and Hoku Cody and other cultural practitioners from Kīlauea represented by Native Hawaiian Legal Corporation. The NHLC litigation team includes Kirsha Durante and Terina Faʻagau.
- Planning Department of the County of Kauaʻi represented by Chris Donahoe from the Kauaʻi County Attorney’s Office.
- Landowners and permit applicants Phillip and Linda Green represented by Paul Alston and Timothy Irons of Dentons US LLP.
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