§171-2  Definition of public lands.  "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including lands accreted after May 20, 2003, and not otherwise awarded, submerged lands, and lands beneath tidal waters that are suitable for reclamation, together with reclaimed lands that have been given the status of public lands under this chapter, except:

     (1)  Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

     (2)  Lands set aside pursuant to law for the use of the United States;

     (3)  Lands being used for roads and streets;

     (4)  Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the state constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

     (5)  Lands to which the University of Hawaii holds title;

     (6)  Lands to which the Hawaii housing finance and development corporation in its corporate capacity holds title;

     (7)  Lands to which the Hawaii community development authority in its corporate capacity holds title;

     (8)  Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

     (9)  Lands that are set aside by the governor to the Aloha Tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

    (10)  Lands that are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title;

    (11)  Lands to which the Hawaii technology development corporation in its corporate capacity holds title; and

    (12)  Lands to which the department of education holds title;

provided that, except as otherwise limited under federal law and except for state land used as an airport as defined in section 262-1, public lands shall include the air rights over any portion of state land upon which a county mass transit project is developed after July 11, 2005. [L 1962, c 32, pt of §2; am L 1965, c 239, §37; Supp, §103A-2; HRS §171-2; am L 1981, c 116, §1; am L 1984, c 19, §1; am L 1987, c 337, §7(1); am L 1989, c 27, §2; am L 1990, c 86, §12; am L 1997, c 350, §14; am L 1998, c 102, §2 and c 176, §6; am L 2003, c 47, §1, c 73, §2, and c 93, §2; am L 2005, c 196, §26(b); am L 2006, c 180, §16; am L 2012, c 56, §1 and c 282, §2; am L 2013, c 38, §2; am L 2015, c 240, §4; am L 2017, c 69, §4; am L 2018, c 210, §4]

 

Cross References

 

  Generally, see notes to Organic Act §73.

  Legislative approval of sale or gift of lands, see §171-64.7.

 

Attorney General Opinions

 

  Inasmuch as the genetic material or composition of the natural resources and things connected to public lands, including ceded lands, are an integral part of those resources and things, title to biogenetic resources will still be held by State if it has not sold the land.  Legal title to biogenetic resources gathered from state public lands will not still be vested in the State if third persons were allowed to remove from public lands the natural resource or thing from which the biogenetic resources were extracted or the State sold or leased title to a parcel of public land without reserving title or retaining control of the resources or things connected to the transferred land, or their biogenetic contents.  Att. Gen. Op. 03-3.

 

Law Journals and Reviews

 

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai‘i.  28 UH L. Rev. 387.

  The Wash of the Waves: How the Stroke of a Pen Recharacterized Accreted Lands as Public Property.  34 UH L. Rev. 525 (2012).

 

Case Notes

 

  Where plaintiffs challenged department of land and natural resources administrative regulations that required a permit for commercial activity (including weddings performed or arranged for a fee) on public beaches:  (1) plaintiffs had standing to make an as-applied challenge; (2) since state unencumbered beaches are non-public fora for purposes of a First Amendment analysis, regulation need only satisfy a requirement of reasonableness, and the regulations passed the test; assuming beaches were public fora, the regulations passed a stricter test for constitutionality; and (3) even if the court had jurisdiction over the breach of settlement agreement (in prior action) claim, plaintiffs would not prevail on that claim.  685 F. Supp. 2d 1140.

 

 

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