Kaahumanu v. Hawaii

Citation2012 Daily Journal D.A.R. 7472,682 F.3d 789,12 Cal. Daily Op. Serv. 6177
Decision Date06 June 2012
Docket NumberNo. 10–15645.,10–15645.
CourtU.S. Court of Appeals — Ninth Circuit
PartiesLaki KAAHUMANU; Maui Wedding and Event Professionals Association, a non-profit organization, Plaintiffs–Appellants, v. State of HAWAII, Department of Land and Natural Resources; William J. Aila, Jr., Chairperson ; Does 1–5, Inclusive, Defendants–Appellees.

OPINION TEXT STARTS HERE

James Harry Fosbinder, Ivey Fosbinder Fosbinder LLC, Wailuku, HI, for the appellants.

William Joseph Wynhoff, Office of the Hawaii Attorney General, Honolulu, HI, for the appellees.

Appeal from the United States District Court for the District of Hawaii, Samuel P. King, Senior District Judge, Presiding. D.C. No. 1:09–cv–00036–SPK–BMK.

Before: A. WALLACE TASHIMA, WILLIAM A. FLETCHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs are Laki Kaahumanu, a Native Hawaiian pastor who performs religious wedding ceremonies, and Maui Wedding and Event Professionals Association (Event Professionals), an association of individuals and businesses providing commercial services for weddings. Defendants are the State of Hawai‘i Department of Land and Natural Resources (DLNR), which manages, controls and administers public lands in Hawai‘i, and William J. Aila, Jr., Chairperson of the Board of DLNR.

Plaintiffs bring a First Amendment and other constitutional challenges to regulations and associated guidelines that require permits for “commercial weddings” on public beaches in Hawai‘i. We uphold the regulations and guidelines in all respects but one.

I. Background

Over 200 public beaches in Hawai‘i are under DLNR's jurisdiction. See Beaches, Hawai‘i Department of Land and Natural Resources, available at http:// hawaii. gov/ dlnr/ land/ forms– 1/ Wiki Permit Locations. pdf (last visited Feb. 10, 2012) (listing beaches). These include such beautiful beaches as Wailea Beach on Maui; Waimea Bay Beach on Oahu; and Papohaku Beach on Molokai. Many commercial companies provide services for recreational activities on Hawai‘i's beaches. During the late 1990s and early 2000s, these services were largely unregulated, with the result that some public beaches became congested by commercial enterprises. For example, kayak and surf schools stored equipment on and operated from public beaches, and hotels set out chairs and umbrellas in the morning before the general beach-going public arrived.

In November 2002, DLNR began to regulate commercial activities on “unencumbered” public beaches. Unencumbered lands are public lands, including beaches, that have not been (1) Set aside for any purpose, by statute, executive order, or other means to a governmental agency; or (2) Encumbered by lease, license, permit, easement, or other document issued by [DLNR].” Haw.Rev.Stat. § 171–1. Beaches within the jurisdiction of DLNR extend from the water's edge to the high-tide line. See In re Ashford, 50 Haw. 314, 440 P.2d 76, 77 (1968) (holding that public lands extend to “upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves”).

DLNR regulations provide, “No person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative.” Haw. Admin. Rules (“HAR”) § 13–221–35 (2011). “Commercial activity” is defined as:

the use of or activity on state land for which compensation is received by any person for goods or services or both rendered to customers or participants in that use or activity.... Commercial activities include activities whose base of operations are outside the boundaries of the unencumbered state lands, or provide transportation to or from the unencumbered state lands.

...

‘Compensation’ includes, but is not limited to, monetary fees, barter, or services in-kind.

HAR § 13–221–2. On August 1, 2008, DLNR began to require permits for “commercial weddings” under the regulations already promulgated for other commercial activities.

An applicant seeking a permit for a commercial event, including a wedding ceremony, may apply by mail or may use a “Wiki Permits” website. Ninety-five percent of permit applications are made through Wiki Permits. The welcoming page of the website, entered into the record in the district court, states, “Commercial activity for which a permit is required would include a beach wedding, a baby christening, the scattering of ashes, or the teaching of a hula class, as possible examples.... It is essential that all commercial activity for which a permit is obtained comply with the General Terms and Conditions for Commercial Activity.”

The Terms and Conditions provide that a permit can reserve a “right-of-entry area” for no more than two hours. The fee for a permit is $0.10 per square foot of the requested beach area, with a minimum of $20 per “event.” An applicant for a permit must obtain “comprehensive public liability insurance,” naming the State of Hawai‘i as an additional insured, of “at least $300,000 per incident and $500,000 aggregate.” An applicant must also agree to indemnify and hold harmless DLNR for loss or damage arising out of actions by the applicant. No alcoholic beverages are allowed in the permitted area. An applicant must agree to restore the beach to its original condition after the event.

The Terms and Conditions provide further:

No accessories, structures, devices, amplified instruments, appliances, apparatus or equipment of any type whatsoever shall be placed on or within the right-of-entry area or premises, including but not limited to the following:

arches; bowers; alters [sic]; tables; chairs; kahilis[1; tents and or tarps; event signage of any type including banners, sandwich boards; kiosks or carts; stanchions, posts, ropes or similar equipment for the purpose of demarcation of the right-of-entry area; and surfboards, windsurf boards, kayaks or other ocean recreation equipment;

with the exception of the following:

loose flowers, leis, bouquets, corsages or boutonnieres; unamplified musical instruments, including a conch shell; doves or butterflies for releases; a limited number of chairs as strictly necessary for the support of elderly, infirm, or disabled persons attending the event(s); cameras and camera equipment; other non-obtrusive hand-carried wedding accessories; small podium or cake stand, not to exceed three feet square in size; and ocean vessels/equipment used exclusively for the purpose of scattering ashes during authorized funeral services.

The Terms and Conditions provide no limitation on the people who may be involved in a wedding. Nor do they provide any restriction on the apparel of participants or on what participants are allowed to say.

Paragraph 17 of the Terms and Conditions provides, “All disputes or questions arising under this right-of-entry shall be referred to the Chairperson [of the Board of DLNR].... The Chairperson's decision shall be final and binding on the parties herein.” Paragraph 18 provides, “The right-of-entry permit is revocable and terminable at anytime for any reason in the sole and absolute discretion of the Chairperson.” Paragraph 21 provides that DLNR reserves “the right to impose additional[ ] terms and conditions as it deems necessary or appropriate while the right-of-entry is in force.”

Guidelines specifically addressed to commercial weddings were published by DLNR in the form of answers to “Frequently Asked Questions.” The answers provide, among other things, “Weddings taking place on a state beach which have any component that involves the receipt of compensation for services or goods other than the services of a photographer require a permit from the DLNR.” A permit is required even if the only person paid in connection with the wedding is a minister, priest, rabbi, or “other religious or nonprofit entit[y].” A civil penalty of up to $5,000 may be levied for failure to have a permit or for violation of the terms and conditions of a permit. Weddings with as few as three people (the wedding couple and a paid officiant) require a permit. The two-hour maximum period of a permit “includes set up and restoring the area after the event.” Permit holders have exclusive occupancy of a “right-of-entry area” of the beach during the period of the permit, but they may not reserve any particular area in advance. Permit holders “must find an open area when they arrive at the beach” and cannot displace people who are already on the beach.

Plaintiffs filed suit in the federal district court of Hawai‘i in January 2009, alleging that DLNR's permit requirements unduly burden their right to organize and participate in weddings on unencumbered state beaches, in violation of the First Amendment, equal protection, and due process. Plaintiffs contend that the regulations and associated guidelines for commercial weddings may not be constitutionally applied on any unencumbered state beach in Hawai‘i. On cross-motions for summary judgment, the district court granted summary judgment to DLNR. The district court held that unencumbered beaches in Hawai‘i are not a traditional public forum. In the alternative, it held that even if such beaches are a traditional public forum, DLNR's regulations and associated guidelines are reasonable time, place, and manner regulations.

Plaintiffs timely appealed.

II. Standard of Review

We review de novo a grant of summary judgment. Hargis v. Foster, 312 F.3d 404, 409 (9th Cir.2002). We conduct an independent review of the facts in First Amendment cases. Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1019 (9th Cir.2009).

III. Discussion
A. Article III Standing

To establish standing under Article III, a plaintiff must show that

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged...

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