The limited space on some of the state’s beaches, which in some cases are lined with more colorful umbrellas than palm trees, is a frequent cause of debate over how much public space commercial operators are allowed to take.

A recent ruling by the state’s Intermediate Court of Appeals could become precedent-setting when it comes to protecting the public’s interests at public beaches, according to attorney David Kimo Frankel, who appealed an earlier decision from the Honolulu’s 1st Circuit Court.

The appeals court ruled Jan. 29 in David Kimo Frankel v. the Board of Land and Natural Resources, Department of Land and Natural Resources and Resort Trust Hawaii LLC — owner of the Kahala Hotel & Resort — that BLNR breached its public-trust duties when it authorized the hotel’s exclusive use of a portion of land designated for use as a public beach.

According to the court documents, the state entered into an agreement in 1963 with the developers of what was then the Kahala Hilton Hotel to allow it to “dredge a swimming area and construct a beach … for and on behalf of the State.”

The current case harks back to challenges to the 50-year-long practice by BLNR and DLNR of issuing temporary month-to-month permits to allow the Kahala Hotel & Resort to use the land in front of the hotel, which was referred to as Lot 41. The Intermediate Court of Appeals’ decision in reference to Lot 41 was tied to a permit issue there that has since been resolved.

“In this case what was being challenged was a permit for 2019 for a decision made in 2018, so that decision and that permit expired, so as a practical matter there is not a permit that this decision will invalidate,” Frankel said. “But the fact that (BLNR’s) decision making was so flawed is a big deal, and it should ensure that the board is more aware of accommodating the public instead of accommodating business interests.”

He added that the appeals court found there was not any evidence that BLNR began with a presumption in favor of public use, as required by law. Frankel said the court found that BLNR did not consider alternatives areas where the hotel could place the items it wanted to put on pubic land, as is required by law. The court’s decision also noted that BLNR failed to consider appropriate factors when it compromised the public-trust resources, according to Frankel.

The court’s decision emphasized “that when it comes to the public trust, natural resource conservation is prioritized over financial gain.”

Worrisome precedent

The state Department of the Attorney General said in a statement that it along with DLNR is reviewing the court’s “lengthy published opinion and (we) are thoughtfully considering next steps. As the ICA remanded the matter to Circuit Court for further proceedings, the Departments won’t be making further comments on pending litigation matters.”

A representative from The Kahala Hotel & Resort said in a statement, “The Kahala Hotel & Resort acknowledges the court’s decision and respects the legal process. The hotel has already made changes to its operations in alignment with public access requirements and will continue to comply with all applicable laws and regulations. We remain committed to working with the community and regulatory agencies to ensure that our beachfront remains a welcoming space for all.”

Richard Turbin, a Waialae-Kahala Neighborhood Board member and a former chair for some 30 years, said over the years the topic of the Kahala Hotel & Resort’s plans for shoreline use has come up, and generally most of the community has supported the resort.

“In my view, (this) decision is destructive, and maybe in some minor ways one could take issue with DLNR’s protocol, but the result is great and it’s not a beach that is just for the Kahala residents. It’s open to everybody,” Turbin said.

However, the resort’s decision to seek a shoreline easement in 2017 for commercial enterprises such as beach activities and weddings encountered some community resistance, and was the precursor to later pushbacks. Critics said it would set a dangerous precedent by favoring commercial interests over public beach access, a hard-won right in Hawaii.

Beach chair setup rules

Resorttrust Hawaii LLC, which bought the Kahala hotel for about $290 million in 2014, had proposed spending $900,000 to improve a 2.65-acre parcel, including leasehold and state beach lands. The property has had a revocable permit since the 1960s, allowing about an acre of public land in that tract to be used for private purposes. The new owners had wanted to exchange the revocable permit for a more permanent nonexclusive easement but eventually withdrew the request.

Frankel said his original motivation for the current case was an incident that occurred around 2018 when hotel security attempted to prevent him from walking on Lot 41 because a wedding was taking place there and they wanted to exclude members of the public.

He said the Intermediate Court of Appeals ruling could potentially have broader implications for other places where presetting of beach chairs on public lands is occurring.

Act 227, which came out of the 2023 state Legislature and applies only to Oahu and Maui, prohibits hotels and vendors from presetting beach chairs or other equipment unless a customer is physically present. Equipment must be removed after a customer is done using it.

Violators face administrative fines, increasing with each offense.

The Legislature exempted Kauai and Hawaii island from Act 227, but Frankel said in theory those exemptions should no longer apply “because (BLNR and DLNR) would have to go through a public trust analysis before allowing a hotel to preset beach chairs on a public beach. If they want to put chairs out for their guests, they can put it on their own land, they don’t have to take over the public beach for that.”

Douglas Meller, an Oahu resident who has been fighting since 2013 to preserve public beach space across the islands, said the precedent behind the appeals court decision is a start in the right direction but falls short of addressing public-trust concerns when the commercial businesses have not applied for permits.

“The ICA decision is good, but did not address all the issues I was hoping that it would address. It constrains BLNR’s decisionmaking when it comes to public trust lands,” Meller said “The ICA ruled on the procedural issues — things BLNR must do in decisionmaking — but not address the substantive issues of failure to enforce, whether it is ever appropriate to allow exclusive use of a beach.”

Waikiki enforcement

The debate over various public-interest beach uses at the Kahala Hotel & Resort also has played out in other areas of the state, especially in Waikiki, where increasing conflicts motivated the state and Waikiki stakeholders to adopt guidelines clarifying that beach equipment in front of the Royal Hawaiian hotel, the Moana Surfrider and the Outrigger Waikiki must be rented to a named customer prior to occupying limited state beach space.

Meller said he has seen some improvement in Waikiki; however, the issue continues to resurface from time to time. He said he has taken pictures of rows of vacant preset commercial beach chairs and umbrellas on the public beach easement makai of the Royal Hawaiian groin as recently as September and December.

In August, DLNR’s Division of Boating and Ocean Recreation sent cease-and-desist orders to Waikiki Beach Beachboys at the Sheraton Waikiki LLC; Waikiki Beach Services at the Royal LLC, Aqualani; Faith Hawai’i Surf School LLC; and Aloha Beach Services after observing alleged violations of Act 227, which bans presetting of commercial beach equipment on certain beaches under state jurisdiction.

During a visit around 8:30 a.m. Thursday at the portion of Waikiki Beach makai of the Royal Hawaiian groin, the Honolulu Star-Advertiser noted that all Aqualani rented chairs and umbrellas were occupied by people or at least had a towel strewn across them.

However, it was less clear whether other companies were in compliance. One company, Waikiki Beach Services, had placed about 18 umbrella and chair sets on the beach in front of the Royal Hawaiian. All of the sets had rental tags, but at least six appeared unoccupied and unclaimed.

Waikiki Beach Services General Manager Chuck Vause said it was a slow day, so most of the umbrellas were not in use.

Vause said the beach umbrella and chair sets are available from 7 a.m. to 5 p.m., and they are not set up unless guests have paid and are physically present to walk out to the beach to pick out their spot.

But he added: “Are they required to sit at that time? No. A lot of them come down early just to go ahead and select their spot, and then most of them disappear for short periods — whether it be they go for breakfast, they go back to bed, they take a walk on the beach. They do whatever activity they need to do.

“It’s set up for them until 5 p.m., and they have the option to come back anytime that they want to (until then).”

Vause said he understands public concerns over the limited beach space, which sometimes is in high demand.

“I can understand Doug (Meller’s) point of view in making sure we have public beach space for not only our guests but the general public, people in other hotels, even local people that come down this direction as well,” he said.