With visible property lines gone and disaster management agencies opening up the land for public access, protections for private residents seem to be in opposition with governmental management.
By Sarah Marusek
A few years back, I visited the Hawai‘i County Civil Defense’s lava viewing zone at the end of Route 130 in Kalapana and was struck by the numerous signs requesting privacy that had been made by local residents whose homes had been covered by lava. It made me wonder what legally transpires when lava claims private property. How exactly do the local, state, and federal governments negotiate rights, title, and the distinction between trespass/access involving Kalapana residents and the viewing curiosity of the visiting public?
With visible property lines gone and disaster management agencies opening up the land for public access, protections for private residents seem to be in opposition with governmental management. While public space may be at odds with private property rights in these lava zones, Madame Pele nonetheless exercises her right of way in Kalapana and more recently, on the outskirts of Pahoa in the June 27th flow. The concept of “right of way” is a socio-legal phenomenon that interpretively tethers legal philosophy to social and cultural applicability. In this way, the “right of way” involves the local and understanding(s) of rules and enactments of order according to the social and cultural understandings of place, visibility, spectacle, and the power-based performativity of rights in the public arena. As a consequence, the formalism of law is limited by its own operationalization as the framework of “right of way” defines how law works in everyday interactions.
In the United States, the concept of “right of way” typically involves traffic-based socio-legal understandings of vehicular order that are fleeting in occurrence and enacted through cultural practice. Often “right of way” is less the overt pronouncement of “right” and more the spontaneous exercise of common sense in terms of who comes first, who is stronger, and who must yield. In lava zones on Hawai‘i Island, visitors, eager to witness the lava-glow in areas managed by the county, walk on land in areas outside the boundaries of Hawaiian Volcanoes National Park that is in flux between private landowner and public agency occupancy. Movement is controlled, monitored, and challenged as imaginaries of belonging confront local government, local residents, and visitors to these lava zones. In these liminal places, “right of way” concerns the larger question of public space and who benefits from public space to the extent that the legal notion of eminent domain and public space transforms cultural understandings of private property, tourist-based visitation, and the jurisdictional interpretation of natural calamity.
At recent community meetings in Pahoa responding to the oncoming lava, suggestions were made to build new roads, build a bridge over the lava, and even, to bomb the lava in an attempt to hinder its advance. These calls for governmental response have been made in an effort to reassert the public’s “right of way” in lower Puna, with the context of “public” pertaining to the rights of property owners in the impacted area. Residential concern seeking governmental redress confront some of the same questions about public space as were raised by the lava flows in Kapalana; namely, what are the rights of community, its local residents, and its visitors and how will these rights be interpreted by local, state, and federal agencies?
Even visitation (read, tourism) to the lava flow is of a similar concern, as calls for respect regarding Kaohe neighborhoods have been made and enforced through 24-hour security guards only allowing Kaohe residents to enter these impacted areas. Here, the legal proclamation involving the “state of emergency” has effectively transformed once publicly accessible streets into a privately guarded enclave. Ironically, this site redevelopment has transpired through public means with the purpose of constricting public access to lava viewing and visitation and further contributes to the contested meaning of “public” and “right of way.”
The act of visiting, or what some call “tourism,” presents interesting tension involving lava zones and public space. In Hawai‘i, law vitally contributes to cultural frameworks of not only what it means to live in this island-based state, but what it means to visit this place. Here, law’s presence in public life contributes to cultural understandings of law, legal processes, and localized jurisdictional contexts that constitutively create the tourist experience. Whether as Hawaiian language heard in airports or seen on street names, the preservation of public memory found in national, state, or county parks, or even the fiercely protected labeling of coffee, legal understandings of ownership and belonging culturally contribute to a pluralist framework of life in this island state. On white/black/green beaches, in lava zones and tsunami zones, or on the sidewalks of Waikiki, law’s presence structures and contributes to understandings of public space, accessibility, and the visitor experience. Across the Hawaiian Islands, law’s impact on culture is a dynamic response to this unique, island-determined framework of legal and cultural pluralism contextualized in the material manifestations of law that commodify place, lava, and tourism in Hawai‘i.
Sarah Marusek is an associate professor and chair of the political science department at the University of Hawai‘i at Hilo. She specializes in law and society, legal semiotics, and jurisprudence, and serves on the editorial board of the International Journal for the Semiotics of Law. She received the UH Frances Davis Award for Excellence in Undergraduate Teaching in 2011. She received her master of science in labor studies and doctor of philosophy in political science from the University of Massachusetts Amherst. Contact.